1 General Criminal Law Enforcement
1.1 What authorities can prosecute business crimes, and are there different enforcement authorities at the national and regional levels?
The Austrian Public Prosecution Service (Public Prosecution) – represented by a prosecutor – is responsible for investigating crimes and prosecuting criminal offences. The public prosecutor is responsible for initiating criminal proceedings for criminal offences prosecuted ex officio and for the direction and supervision of criminal investigations. Furthermore, the prosecutor is authorised to order the cessation of criminal proceedings when the facts of the case so warrant. While the prosecutor directs and supervises criminal investigations, the utilisation of certain investigative measures that affect/restrict basic human rights or liberties can only be authorised by the court. There are no different national and regional enforcement levels.
1.2 If there are more than one set of enforcement agencies, please describe how decisions on which body will investigate and prosecute a matter are made.
Basically, the organisational levels of the Public Prosecution correspond to the levels of court organisation. An office of Public Prosecution is set up with every regional court in charge of penal cases. The prosecutors of these courts are in charge of filing and representing indictments, both before the regional court and the district courts of the respective regional district court. As a rule, District Prosecutors (Bezirksanwalt) will present the indictment before the district courts. The latter are officials with special expertise, but do not require university training. Simple criminal acts with penalties of not more than one year in prison are prosecuted by the District Prosecutors.
Criminal offences resulting in a sentence of more than one year are prosecuted by the Public Prosecution. Starting from September 2011, the Central Public Prosecution of White Collar Crime and Corruption at the Economic Competence Center (Wirtschaftskompetenzzentrum) prosecutes with specially trained prosecutors serious white collar crime offences resulting in a sentence of more than five years in prison and where the damage exceeds EUR 5 million (e.g. embezzlement, serious (accounting) fraud and/or fraud committed with the intention of establishing a regular income, breach of trust, impairment of creditors, fraudulent misuse of data, serious tax crimes and money laundering). The Central Public Prosecution is replacing the Anti-Corruption Public Prosecution Service, which was institutionalised in 2009.
According to the Austrian Criminal Procedure Act the prosecutor is the "head of investigations" (i.e. pre-criminal proceedings) and decides on the measures of investigations. Usually, the prosecutor orders the Austrian criminal police to assist or conduct investigations on its behalf. The Austrian criminal and business police have a reporting hotline for money laundering and fighting business-related crime. The investigating police are subject to directives of the prosecutor. Coercive sanctions by the prosecutor that impact the basic human rights of the suspect or the defendant – such as search warrants, confiscation of evidence, information regarding bank accounts and bank transactions, blocking of accounts and telephone surveillances – must be authorised by the judge of the criminal court. The Criminal Investigation Department of the police is responsible for undertaking all investigative measures authorised by the public prosecutor or the court that are aimed at the collection of evidence and the determination of the facts of the case.
1.3 Is there any civil or administrative enforcement against business crimes? If so, what agencies enforce the laws civilly and which crimes do they combat?
The Austrian Code of Enforcement provides a tool for preliminarily securing assets (preliminary injunction) in order to avoid the situation where the enforcement of a future court decision is considerably more difficult or even impossible. Upon the party's request, the court may issue injunctive relief for securing monetary claims, most importantly in cases of the "subjective endangerment" of the requesting party. The court may take the following measures when issuing injunctive relief in order to secure monetary claims:
- movable objects (including money): judicial custody or administration/management; or an order to refrain from giving away, selling, or pawning movable objects;
- immovable objects: judicial administration/management; or an order to refrain from giving away, selling, hypothecating, or registering any encumbrances in the land registry; and
- receivables: garnishment order.
The prosecutor may order the temporary securing of objects and/or assets for the sole purpose of securing the civil claims of the persons injured by a criminal offence. Such securing of assets is accomplished by establishing direct custody or by ordering the suspect to refrain from giving away, selling or pawning objects and/or assets. The prosecutor may (upon authorisation by the criminal court) order house searches and the securing or seizure of objects (including letters and other documents) that might serve as evidence or secure civil claims, the monitoring of a suspect's communication, etc. Any person injured by a criminal offence is entitled to access files and to make use of such evidence in subsequent civil proceedings.
2 Organisation of the Courts
2.1 How are the criminal courts in Austria structured? Are there specialised criminal courts for particular crimes?
The composition of the criminal court depends on the type of criminal act being adjudicated. Criminal offences that are punishable by monetary fines or a maximum prison term of one year are within the jurisdiction of district courts and are adjudicated by a single judge. Criminal offences of a more serious nature are within the competence of regional courts, in varying compositions:
criminal acts punishable by a minimum sentence of five years and a maximum sentence of more than 10 years, and criminal acts punishable by life-time imprisonment (e.g. murder), as well as other very serious crimes, are heard by a panel of three (professional) judges and an 8-member jury (Geschworenengericht);
criminal offences that are punishable by a minimum sentence exceeding five years and a maximum sentence of 10 years' imprisonment, as well as other serious crimes, are heard by a panel of one (professional) judge and two lay judges (mixed jury; Schoffengericht); and
all other criminal offences of a less serious nature are decided upon by a single professional judge.
2.2 Is there a right to a jury in business-crime trials?
Business crimes that are punishable by a minimum sentence exceeding five years' and a maximum sentence of 10 years' imprisonment are heard by a panel of one (professional) judge and two lay judges (mixed jury).
3 Particular Statutes and Crimes
3.1 Please describe any statutes that are commonly used in Austria to prosecute business crimes, including the elements of the crimes and the requisite mental state of the accused:
- Fraud and misrepresentation in connection with sales of securities
It is a criminal offence if someone causes another to commit an act, or omits or tolerates an act, that causes a loss of property by such person or by another, by deceit regarding facts with the intent to unlawfully enrich himself or a third party.
There are no specific laws in the Austrian Penal Code related to the sale of securities.
- Accounting fraud
Members of the management or supervisory board who mis-state, conceal or fail to disclose the situation of the company or affiliated companies, or other material circumstances, are criminally liable. Such offences must be committed intentionally. This provision refers to the personal liability of creditors.
- Insider trading
Insider trading is a form of securities fraud. It involves trading a company's securities by individuals who have access to non-public information about the company, such as an imminent litigation settlement, regulatory approval for a significant product or recent financial performance. "Inside information" is defined as nonpublic specific information, which directly or indirectly relates to a financial instrument or its issuer and which, if it were known to the public, would be capable of substantially affecting the price of such financial instruments (or derivatives related thereto), because such information would be used by an informed investor as a basis for making investment decisions. Insiders include corporate officers, key employees, directors, and shareholders who are beneficial owners of at least 10% of the company's shares.
Criminal liability under Austrian insider trading rules attaches to persons who take advantage of inside information. A person who takes advantage of inside information, with or even without the intention of gaining a pecuniary benefit for him or herself or a third party, by buying financial instruments (which term includes the certificates) is liable under Austrian criminal law.
- Embezzlement
Embezzlement is the fraudulent conversion of property to a person's own use by a person who has been entrusted with it. It is different from theft in that the embezzler has a relationship of trust with the victim under which the embezzler was lawfully in possession of the property until he or she appropriated it.
- Bribery related offences
As of 1 January 2013, a new anti-bribery regime will become effective in Austria. The amendments of the Austrian Criminal Penal Code basically broaden the prosecution of corrupt behaviour and strengthen Austria's fight against bribery.
Definitions
The definition of the public official (Amtstrager) has been extended. The new regime also covers all employees and officers of state-owned enterprises and enterprises who are (partially) directly or indirectly controlled by a regional administrative body. According to the new definition, the term "public official" shall mean any individual who (is):
a. a member of a national constitutional representative body, if he/she votes in an election or poll or otherwise carries out or omits to carry out an action in the performance of his duties as defined in the regulations for its rules of procedure;
b. takes over assignments of legislation, administration or justice as its body or employee, for the state, a federal state, an association of local authorities, a municipality, another corporate body under public law, except a church or religious community, for another state or for an international organisation;
c. otherwise authorised on behalf of the entities listed in lit. b to carry out official duties in the enforcement of laws; or
d. acts as a body or employee of a company of which one or several domestic or foreign regional administrative bodies directly or indirectly hold at least 50% of the share capital, joint stock, or proprietary capital, which runs such a regional administrative body, alone or together with other such regional administrative bodies, or actually controls it by financial or other economic or organisational means; at any rate every company whose behaviour is subject to an audit by the audit court, federal institutions equal to the audit court or a comparable international or foreign controlling institution.
A judge in arbitration courts (Schiedsrichter) is any decision maker in an arbitration court in the sense of Para 577 ff of the Austrian Civil Procedure Code located in-country (Austrian arbitrator) or abroad or with a not yet defined location.
Corruptibility of public officials for conduct contrary to Duty
It is a crime to provide, promise, or offer to any public official or judge in arbitration courts a benefit for himself or a third party for the conduct or omission of his/her function incumbent upon him/her. It is also a crime to provide, promise, or offer to a court expert (Sachverstandiger) an advantage for her/him or a third party for an incorrect expert finding. An advantage is any performance of a material or immaterial nature that puts the bribed party into a better position (useful for him/her or a third party) and to which he/she does not have a legal claim. The crime is sanctioned with a prison sentence of up to ten years' imprisonment.
Undue advantages to public officials for proper Performance
The offering, promising or granting of an undue advantage to a public official or judge in arbitration courts in reference to the lawful performance or omission shall be punished. In this context, benefits are not undue if:
(i) the acceptance of the advantages is legally permitted (1st alternative), or they are granted in the context of events, the participation in which constitutes an interest that is functionally or factually justified (2nd alternative);
(ii) advantages for charitable purposes, on the utilisation of which the public official does not exert any dominating influence; and
(iii) for want of permission norms in the sense of (i), locally customary assiduities of small value, lest the deed is perpetrated on a commercial basis.
The crime is sanctioned with a prison sentence of up to five years' imprisonment.
Undue advantages to public officials for improper Performance
The offering, promising or granting of an undue benefit to a public official or judge in arbitration courts in order to intentionally influence his/her lawful performance or omission shall be punished. The crime is sanctioned with a prison sentence of up to five years imprisonment.
Prohibited intervention
It is a crime if a person demands, accepts or allows him/herself to be promised an advantage for him/herself or for a third party for the exercise of an undue influence on the decision by a public official or the arbitration court's judge. The crime is sanctioned with a prison sentence of up to two years' imprisonment.
Similar punishment shall be imposed on whoever provides, promises, or offers an advantage to a person who exercises an undue influence on the decision by a public official or an arbitration court judge. The crime is sanctioned with a prison sentence of up to five years' imprisonment.
The influence on the decision by a public official or the arbitration court's judge is undue if (i) it aims at the unlawful performance or omission of a public official that is in breach of his/her duty, or (ii) an undue advantage to the public official or a third party is granted, offered or promised in relation to the undue influence.
Bribery, acceptance of gifts and corruption of employees or agents
It is a crime if an employee or agent of an enterprise demands, accepts or allows him/herself to be promised an advantage for him/herself or for a third party for the performance or omission of an act in breach of his/her duties in the course of trade. Similar punishment shall be imposed on whoever provides, promises, or offers an advantage to an employee or an agent of an enterprise or a third party in the course of trade for the unlawful performance or omission of an act in breach of the employee's or agent's duties. The crime is sanctioned with a prison sentence of up to five years' imprisonment.
- Criminal anti-competition
Illegal arrangements in submissions
This offence generally refers to award procedures in public invitations to tender. The offence also includes protective and sham offers to cover another offer. Generally, a person who makes an application for participation, submits an offer, or conducts negotiations during an invitation to tender that are based on an illegal agreement intended to cause the customer to accept a certain offer, is liable to prosecution. The occurrence of damage to the customer is not necessary for the accomplishment of the offence.
Agreements between bidders
Collusion through or in connection with agreements between bidders in private invitations to tender (submission cartels) to eliminate competition, constitutes fraud. The customer is deceived that the prices offered were fairly calculated in free competition so that he suffers damage in the amount of the difference between the price that would have been established through a normal competition and the agreed (higher) "cheapest bid" to the benefit of the ostensible cheapest bidder (so-called submission fraud).
- Tax crimes
Tax evasion means wilfully attempting in any manner to evade any tax. To be liable for tax evasion, a person must take at least one affirmative act constituting an evasion or attempted evasion of the tax. Other tax crimes include wilfully failing to collect and pay over tax that is due (such as employment taxes) and wilfully failing to file a tax return.
- Government-contracting fraud
There is no specific provision in the Austrian Penal Code for this.
- Environmental crimes
The Austrian Criminal Penal Code punishes the impairment of the environment which was conducted either negligently or intentionally.
- Campaign-finance/election law
According to the new Austrian Act on the Financing of Political Parties (Parteiengesetz 2012), effective since 1 July 2012, all grants shall be disclosed in a political party's accounting report. The Annex to the political party's accounting report shall list the receiving party of the grant. In the event that grants to a political party exceed EUR 3,500 per year, the name and address of the granting party shall be disclosed in the report. Grants to a political party exceeding EUR 50,000 shall be reported to the Austrian Court of Auditors (Rechnungshof) and will be published immediately on that institutions website.
The acceptance of the following grants is prohibited for political parties:
(i) grants to political parties from:
a. public law-based entities or bodies;
b. entities in which public law-based entities and bodies which own 25% or more of shares;
c. natural or legal persons in case the grant is given in cash and exceeds EUR 2,500; and
d. foreign natural or legal persons in case the grant exceeds EUR 2,500;
(ii) grants exceeding EUR 1,000 made on an anonymous basis or made for an anonymous third party; and
(iii) grants from natural or legal persons when it is recognisable that the grant aims to bring about a certain economical or legal advantage for the granting party or is made as a return of a certain action or omission of the political party.
Any sponsoring to political parties (including payments and payments in kind) exceeding EUR 12,000 per year shall also be reported, as must the political party's income from advertisements in publications or platforms owned by the political party, if the advertisement cost exceeds EUR 3,500.
It is to be noted that the Act on the Financing of Political Parties is an administrative act only. Violations of the above provisions (which have been committed intentionally) are sanctioned with monetary fines of up to EUR 20,000. In case a political party or its member shall be involved in bribery or related offences, the antibribery provisions in the Austrian Criminal Code apply.
- Breach of trust
Whoever knowingly abuses the authority conferred to him by statute, official order, law or contract to dispose of property not belonging to him or to oblige this other person and causes damage to another person in this way, shall be liable to imprisonment for up to ten years.
3.2 Is there liability for inchoate crimes in Austria? Can a person be liable for attempting to commit a crime, whether or not the attempted crime is completed?
In general, the attempt to commit an offence intentionally (an intentional offence) is punishable. The preparation of the attempt is also punishable. An act is attempted, and thus punishable, as soon as the offender has confirmed his decision to commit the offence by an implementation act or at least an act that is related to the implementation. The offence need not have been accomplished.
4 Corporate Criminal Liability
4.1 Is there entity liability for criminal offences? If so, under what circumstances will an employee's conduct be imputed to the entity?
The Austrian Code on Corporate Criminal Liability establishes liability on the part of entities for criminal acts committed by their employees or decision-makers. For an offence to be established it must also have involved neglecting a duty of the entity. If the perpetrator is a "decision-maker" the entity is liable for such offence if it is committed in the interest of the entity or occurred due to negligence. The commission of a criminal offence by any employee of the entity provided that a decision-maker has violated its duty to supervise or control in compliance with the law leads also to corporate criminal liability. In principle, the Code only demands that the employee meets all the objective elements of the respective criminal offence. It is sufficient if such elements are collectively fulfilled by the acts of several employees.
Unlawfulness or even culpability of the behaviour set by employees is not claimed.
4.2 Is there personal liability for managers, officers, and directors if the entity becomes liable for a crime?
Parallel to the criminal liability of the entity, the decision-maker and/or the employee who committed the offence are criminally liable. Pursuant to Austrian criminal law, individuals and legal entities can be convicted separately.
4.3 Where there is entity liability and personal liability, do the authorities have a policy or preference as to when to pursue an entity, when to pursue an individual, or both?
According to the Austrian Code on Corporate Criminal Liability, authorities are obliged to indict the individual, together with the entity in one criminal indictment (in case both proceedings can be lead together). However, in polemic perspectives of many public prosecutors, an indictment of the individual is seen as sufficient and thus the entity may not be subject to an indictment.
5 Statutes of Limitations
5.1 How are enforcement-limitations periods calculated, and when does a limitations period begin running?
Most civil claims (e.g. compensation for damages) are subject to a statue of limitations of three years after notice of the damage and knowledge of the tortfeasor (calculated from the point in time at which the causal link between the damage and the wrongful behaviour of the tortfeasor became obvious to the damaged party).
Civil claims for compensation for damages, which result from a criminal offence that is punishable by more than one year's imprisonment, are subject to a statute of limitations of thirty years after the offence was committed.
5.2 Can crimes occurring outside the limitations period be prosecuted if they are part of a pattern or practice, or ongoing conspiracy?
Basically, no. In the case of ongoing offences (e.g. repeated bribery) in which several acts were committed, the period of limitations begins to run at the conclusion of the last offence.
5.3 Can the limitations period be tolled? If so, how?
The statute of limitations for civil claims can be interrupted by a claim and/or criminal complaint of the private party damaged by the defendant(s) or legal entity. This happens either by a submission of the claim or criminal complaint to the court or public prosecution or in a hearing.
6 Initiation of Investigations
6.1 How are investigations initiated? Are there any rules or guidelines governing the government's initiation of any investigation? If so, please describe them.
The initiation of criminal proceedings for certain less serious criminal acts remains at the discretion of the injured party. In these cases, the injured party may privately pursue a criminal action whereby, in its capacity as a "private prosecutor", the injured party effectively replaces the public prosecutor. Some of these cases relate to the breach of industrial or business secrets, violations of intellectual property rights, violations of certain acts of unfair competitions or acts of (minor) corruption in the private sector. Criminal proceedings against the recipient will be commenced ex officio only if the claim exceeds EUR 5,000 or the corrupt acts are committed with the intention of establishing a regular income. Criminal proceedings against the payer will be commenced ex officio only if the offered or given reward is not negligible. In all other cases, only the injured person, or certain interest groups, may prosecute the offenders.
6.2 Do the criminal authorities have formal and/or informal mechanisms for cooperating with foreign prosecutors? Do they cooperate with foreign prosecutors?
Austrian authorities can use judicial assistance mechanisms in order to cooperate with foreign prosecutors. Formal proceedings of judicial assistance coordinate those mechanisms, which apply to foreign prosecutors of countries where a bilingual, EU or international agreement on judicial assistance has been concluded. Cooperation with foreign prosecutors is especially used in crossborder business crimes.
7 Procedures for Gathering Information from a Company
7.1 What powers does the government have generally to gather information when investigating business crimes?
Austrian criminal procedure does not feature strict rules of evidence. The court determines the probative value of evidence through free and diligent deliberation. The prosecutor may order the temporary securing of objects and/or assets for the sole purpose of securing the civil claims of the persons damaged by a criminal offence.
Criminal proceedings can be used to obtain documents in the opponent's or third parties' possession. These documents can then be used as evidence in subsequent civil proceedings. The prosecutor may order house searches and the securing or seizure of objects that might serve as evidence or secure civil claims, the monitoring of a suspect's communication, and more.
Document Gathering:
7.2 Under what circumstances can the government demand that a company under investigation produce documents to the government, and under what circumstances can the government raid a company under investigation and seize documents?
Demands towards an enterprise by the department of public prosecution can only be made if preliminary investigations are pending against one or more persons charged who are suspected of committing an offence. A house search is only permissible if it can be assumed on the basis of certain facts that:
- a certain person suspected of having committed an offence is hiding in there; or
- there are objects or traces that must be secured and evaluated as evidence in criminal proceedings.
There must be certain facts from which it could be reasonably concluded that the object searched for is in the place concerned (on these premises). The prosecutor may seek authority to raid a company to seize documents by obtaining a search warrant. The warrant must be based on facts known to the prosecutor that provide "probable cause" to search for and seize property.
Before carrying out the house search, the inspectors must first demand that the objects sought be voluntarily handed over (voluntary inspection).
7.3 Are there any protections against production or seizure that the company can assert for any types of documents? For example, does Austria recognise any privileges protecting documents prepared by attorneys or communications with attorneys? Do Austria's labour laws protect personal documents of employees, even if located in company files?
Privileged information of attorneys (in connection with their clientrelationship) is excluded from any investigations and may not be used as evidence generally. Further, business and trade secrets must be respected by the criminal authorities. Denying a right guaranteed by the Austrian Criminal Procedure Code (e.g. access to the files), or the unlawful use of an investigative or coercive measure against the defendant or a third party (attorney or entity) is subject to objection by the violated party. In such cases the investigation and evidence are inadmissible.
The Austrian employment law allows investigations and searches of private documents of employees who are suspected of committing a crime. If there is no suspicion, the employee must agree to the search.
7.4 Under what circumstances can the government demand that a company employee produce documents to the government, or raid the home or office of an employee and seize documents?
The government may seek documents from an employee to the same extent, and via the same procedures that it may seek documents from the company. Prior to any seizure of documents the authorities must ask that they be submitted voluntarily.
7.5 Under what circumstances can the government demand that a third person produce documents to the government, or raid the home or office of a third person and seize documents?
See question 7.4 above.
Questioning of Individuals:
7.6 Under what circumstances can the government demand that an employee, officer, or director of a company under investigation submit to questioning? In what forum can the questioning take place?
Here it is of importance that the questioned employee is informed whether he is incriminated or not. Any person that is subject to criminal proceedings must be informed as soon as possible of the ongoing criminal proceedings, as well as of the suspicion against him.
If the employee is located in Austria he/she may be ordered to appear as a witness before an Austrian court. A witness may be heard upon the request of any party (defendant, private party, prosecutor), or by order of the court even if no party so requested. A witness is obliged to appear before the court, to testify and to tell the truth. Certain persons may be excused as a witnesses entirely (e.g. relatives of the defendant) or with respect to privileged information (attorneys). A witness is regarded as a source of evidence for the parties.
In preliminary investigations and criminal proceedings in the course of the examination of witnesses, every person has the right to call in a person of trust. Witnesses and participants of the offence are excluded as persons of trust. Attorneys can also act as persons of trust.
A person who is under criminal investigation or becomes linked to the commission of a crime is called a defendant. The defendant has a due process right to be heard during the pre-trial and trial stages. This testimony serves not only in his defence but also in the court's quest for truth. During the interrogation, the defendant has certain rights and privileges.
7.7 Under what circumstances can the government demand that a third person submit to questioning? In what forum can the questioning take place?
The government (i.e. prosecution, court) may question third persons to the same extent, and via the same procedures, as it questions employees, officers or directors of a company.
7.8 What protections can a person being questioned by the government assert? Is there a right to refuse to answer the government's questions? Is there a right to be represented by an attorney during questioning?
See question 7.6 above.
8 Initiation of Prosecutions / Deferred Prosecution / Civil Dispositions
8.1 How are criminal cases initiated?
Criminal proceedings are initiated ex officio if the public prosecution authority becomes aware of facts that may give rise to criminal prosecution (e.g. by a criminal complaint or information provided by other authorities). Anyone may file a criminal complaint with the office of the public prosecutor, the police or the criminal investigations department of the police.
After authorities become aware of a suspicion that a criminal offence was committed with respect to their area of competence, they are required by law to file a criminal complaint.
8.2 Are there any rules or guidelines governing the government's decision to charge an entity or individual with a crime? If so, please describe them.
Yes. See question 4.1 above.
8.3 Can a defendant and the government agree to resolve a criminal investigation through pretrial diversion or an agreement to defer prosecution? If so, please describe any rules or guidelines governing whether pretrial diversion or deferred prosecution are available to dispose of criminal investigations.
In specific situations, alternative responses to a criminal act are possible. The possibility of "diversion" (a non-penal settlement) exists if the facts are sufficiently clear and if the act is not subject to the jurisdiction of a mixed or jury court and has not led to the death of a person. In such cases, the public prosecutor (or in later stages of the trial, the court) may choose diversion measures, provided that the defendant's fault is not serious and punishment does not seem required for purposes of special or general prevention. Diversion measures must be accepted by the defendant and may include monetary penalties, community service, probation and/or an out-of-court settlement with the victim.
8.4 In addition to or instead of any criminal disposition to an investigation, can a defendant be subject to any civil penalties or remedies? If so, please describe the circumstances under which civil penalties or remedies are appropriate.
The commission of a criminal offence may give rise to damages. A defendant may be held liable for civil claims of the damaged party. Civil and criminal proceedings against an individual or legal entity may run in parallel.
9 Burden of Proof
9.1 For each element of the business crimes identified above, which party has the burden of proof? Which party has the burden of proof with respect to any affirmative defences?
The government (i.e. the prosecutor) has the burden to prove every element of the crime. The defendant has the burden to prove every element of an affirmative defence.
9.2 What is the standard of proof that the party with the burden must satisfy?
The prosecutor must prove every element of the crime beyond a reasonable doubt. Defendants generally have the burden of proving affirmative defences by "clear and convincing evidence" or a "preponderance of the evidence", which are lower standards of proof. The preponderance of the evidence standard means that all of the evidence, taken together, makes a particular fact more likely than not. The clear and convincing standard is between the preponderance and beyond reasonable doubt standards.
9.3 In a criminal trial, who is the arbiter of fact? Who determines whether the party has satisfied its burden of proof?
In criminal trials for business crimes sanctionable with imprisonment of a maximum of five years, a single judge is the arbiter of fact and decides whether a party has satisfied its burden of proof. In mixed jury trials, the jury is the arbiter of fact and decides whether a party has satisfied its burden of proof.
10 Conspiracy / Aiding and Abetting
10.1 Can a person who conspires with or assists another to commit a crime be liable? If so, what is the nature of the liability and what are the elements of the offence?
Contributory and designating offenders are also liable to prosecution. A contributory offender is someone who intentionally or negligently contributes to the commission of an offence (e.g. enabling, facilitating, safeguarding or otherwise promoting the offence). A designating offender is someone who intentionally causes another person to commit an offence.
11 Common Defences
11.1 Is it a defence to a criminal charge that the defendant did not have the requisite intent to commit the crime? If so, who has the burden of proof with respect to intent?
A person is acting with intent and, thus, culpably, if he wishes to realise a situation that corresponds to a statutory definition of an offence. Wilful misconduct refers to the conscious and wilful pursuit of a goal in full awareness of its unlawful nature. What matters most is that damages are being inflicted with full knowledge and intent, requiring the injuring party to know that its conduct is unlawful. Wilful negligence differs from dolus eventualis in that, while the wilfully acting injuring party regards the goal as a possible outcome, it trusts that it will not be realised. Most business crimes are only punishable if the act was committed intentionally. In the majority of the cases, dolus eventualis is sufficient.
There is no formal burden of proof in criminal proceedings, as the court must ascertain the material truth. If the prosecutor cannot sufficiently prove the incriminating facts (e.g. that the person charged acted with intent) the factual situation more favourable for the person charged must be assumed (the principal of in dubio pro reo).
11.2 Is it a defence to a criminal charge that the defendant was ignorant of the law i.e. that he did not know that his conduct was unlawful? If so, what are the elements of this defence, and who has the burden of proof with respect to the defendant's knowledge of the law?
There is an error as to the prohibited nature of an act if the offender does not recognise the unlawfulness of his offence. Either the offender does not recognise at all that his act is prohibited and thus unlawful, or he is mistaken in the existence and/or the limits of the grounds of justification and does not recognise the unlawfulness of his act for that reason. If the offender cannot be accused of the unlawfulness of his act, every type of guilt and thus every type of punishment is excluded.
11.3 Is it a defence to a criminal charge that the defendant was ignorant of the facts i.e. that he did not know that he had engaged in conduct that he knew was unlawful? If so, what are the elements of this defence, and who has the burden of proof with respect to the defendant's knowledge of the facts?
If the offender does not appreciate that he is creating a situation that corresponds to the statutory definition of an offence, he is acting without intent (but rather is mistaken as to the type of offence). Punishment for intentional action is thus not applicable. Punishment for negligent action remains, however, if there is indeed a corresponding offence involving negligence.
The person charged must prove the mistake as to the type of offence. The court must satisfy itself that a mistake as to the type of offence exists.
12 Voluntary Disclosure Obligations
12.1 If a person becomes aware that a crime has been committed, must the person report the crime to the government? Can the person be liable for failing to report the crime to the government?
There is no legally standardised disclosure requirement for enterprises and their organs. In view of the risk of the liability of an organ under criminal law and the corporate criminal liability threatened, it is recommended that the entity reimburse the third parties' financial damage if this was caused by an organisation fault on the part of the entity. Complete and timely indemnification for damages is to be considered active contrition.
13 Cooperation Provisions / Leniency
13.1 If a person voluntarily discloses criminal conduct to the government or cooperates in a government criminal investigation of the person, can the person request leniency from the government? If so, what rules or guidelines govern the government's ability to offer leniency in exchange for voluntary disclosures or cooperation?
Starting in January 2011, a leniency programme for criminal proceedings will likely come into effect in Austria. The public prosecution will have the opportunity to waive an indictment if the accused party has voluntarily supplied significant information. Certain requisite conditions exist for principal witnesses. Despite cooperating with the authority, the principal witness must reckon with a fine, but not with imprisonment. A handbook gives information about the guidelines for the leniency programme in criminal proceedings.
13.2 Describe the extent of cooperation, including the steps that an entity would take, that is generally required of entities seeking leniency in Austria, and describe the favourable treatment generally received.
In view of the risk of the liability of an organ under criminal law and the corporate criminal liability threatened, it is recommended that the enterprise reimburse the third parties' financial damages if this was caused by an organisation fault on the part of the enterprise. Complete and timely indemnification for damages on the part of the enterprise is to be considered active contrition. This can also be done by self-incrimination before the authority. Self-incrimination is, however, not compulsory for the rescission of punishment.
If the act is no longer culpable because of active contrition, there is also no causal offence, so that the Austrian Code on Corporate Criminal Liability is completely inapplicable. This means that no application for imposition of a fine can be made against the enterprise. The mere reporting of the facts of the case to the customer without indemnification for damages or selfincrimination before the authorities is not a sufficient precondition for active contrition.
14 Plea Bargaining
14.1 Can a defendant voluntarily decline to contest criminal charges in exchange for a conviction on reduced charges, or in exchange for an agreed upon sentence?
In theory, plea bargaining is prohibited in Austria. However, in practice, informal arrangements between the public prosecutor and the defence do occur occasionally.
14.2 Please describe any rules or guidelines governing the government's ability to plea bargain with a defendant. Must any aspects of the plea bargain be approved by the court?
There are no rules applicable to plea bargaining (see question 14.1).
15 Elements of a Corporate Sentence
15.1 After the court determines that a defendant is guilty of a crime, are there any rules or guidelines governing the court's imposition of sentence on the defendant? Please describe the sentencing process.
The Austrian Penal Code provides the minimum and maximum sentences (i.e. the amount of fine, term of imprisonment or both) to which the defendant can be sentenced for a particular offence. Once the court determines that a defendant is guilty, the sentence is left to the court's discretion; there are no official sentencing guidelines. The court must consider certain extenuating (i.e. compensation of the victim, confession) and aggravation circumstances (i.e. amount of damage, defendant's history). If a person charged is sentenced to a prison term not exceeding 2 years or a fine, the court shall suspend the punishment, setting a period of probation. No sentence without probation is pronounced. Sentences of imprisonment of up to 2 years can be converted to a fine.
15.2 Before imposing a sentence on a corporation, must the court determine whether the sentence satisfies any elements? If so, please describe those elements.
A legal entity found guilty is punishable by a fine, which is calculated in units. A unit is measured by the organisation's profitability and its overall financial capacities, but cannot be less than EUR 50 or more than EUR 10,000. The total maximum unit is EUR 1.8 million.
The Austrian Code on Corporate Criminal Liability is, however, geared strongly towards preventative measures by entities. If preventative measures have already been set by the company to avoid the committing of criminal acts, then the law will look at it as a mitigating circumstance or even as a ground for dismissal of the case. A compliance programme, if implemented properly by the entity, can help stop criminal acts from being committed in the first place, on the one hand, and lead to relief from group liability on the other.
16 Appeals
16.1 Is a guilty or a non-guilty verdict appealable by either the defendant or the government?
A guilty verdict may be appealed by the defendant or by the public prosecutor, while an acquittal may be appealed only by the prosecutor.
16.2 Is a criminal sentence following a guilty verdict appealable? If so, which party may appeal?
A guilty verdict may be appealed by both the defendant and the public prosecutor. If both parties appeal, the verdict can be changed either in favour of, or to the disadvantage of, the defendant. If only the defendant has appealed, the court may not increase the punishment on appeal. Furthermore, the defendant may only appeal civil claims.
16.3 What is the appellate court's standard of review?
Only those procedural errors listed in the Austrian Criminal Procedure Act lead to a nullity with no discretion on the part of the appellate judge. Material error influencing the outcome of a judgment, either acquittal or another criminal offence with a lesser sentence, may be grounds for appeal which lead to nullity as well. Grave error in the evaluation of evidence (questions of fact) may be considered in favour of the defendant.
16.4 If the appellate court upholds the appeal, what powers does it have to remedy any injustice by the trial court?
Enumerated types of legal error may be redressed through a nullity appeal. These types of error include error in procedural and substantive law, such as: a judge, the defendant or his counsel was not present during the entire trial; other serious violations of procedural rules have occurred; or the evaluation rendered by the court concerning key evidence is unclear, incomplete, contradictory, or insufficiently reasoned. Other types of error include incorrect application of substantive criminal law, e.g. the imposition of punishment in excess of what the law permits. The appellate court may immediately grant the appeal and order a new trial in favour of the defendant.
This article appeared in the 2013 edition of The International Comparative Legal Guide to: Business Crime; published by Global Legal Group Ltd, London. www.iclg.co.uk
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