AUSTRIA Law and Practice Contributed by: Michael Rohregger, Rohregger Rechtsanwälte
4. Defences and Exceptions 4.1 Defences
penalty under Austrian criminal laws if the prin - cipal place of business or registered office of the organisation is situated in Austria. Furthermore, Austrian criminal law comprises other special provisions that could in principle establish pun - ishability under Austrian criminal laws. 3.3 Corporate Liability The Austrian Corporate Liability Act ( Verbands- verantwortlichkeitsgesetz ) sets out the precon - ditions under which legal entities, registered partnerships and European Economic Interest Groupings (associations) are liable for criminal offences. All offences may be potentially consid - ered criminal offences. An association may – in addition to the natural person – be held liable for a criminal offence if the act has been committed in favour of the association or duties have been breached through the act of crime in question. Where certain preconditions are given, criminal offences on the part of a decision-maker or an employee of the association may enter into con - sideration. The liability of an association for an offence and the punishability of decision-makers or employ - ees in respect of the same act do not preclude one another. By way of legal consequence, the Austrian Corporate Liability Act imposes primari - ly a fine. Under some circumstances, successors in title may also bear the legal consequences set out in the Austrian Corporate Liability Act. A uni - versal successor in title is in any event affected by the legal consequences; a singular succes - sor in title is affected if, essentially, the same ownership circumstances exist in respect of the entity and the business operation or activity is essentially being continued.
Particularly in the case of crimes against proper - ty, a defence may be based purely on the asser - tion that the objective constituent elements of the offence are not even fulfilled. If – for example, in the case of an allegation of breach of trust (Section 153 of the Austrian Criminal Code) – it is possible to demonstrate straightforwardly that the company suffered no prejudice (for instance, because a payment has a corresponding value for the company), then neither does punishabil - ity enter into consideration. Furthermore, within the framework of defence, it is often possible to demonstrate that the perpetrator had no inten - tion to satisfy the constituent elements of an offence (ie, the perpetrator lacked the intent that is a mandatory precondition of punishability). General grounds under criminal law aimed at justifying and excusing an action (self-defence, mistake of fact meaning an absence of mens rea, etc) play a very secondary role in criminal law relating to corruption. Naturally, the pros - ecuting authority is under a duty to provide evi - dence and the presumption of innocence applies to the accused. If there exists any doubt as to their guilt, they must be acquitted (in dubio pro reo). In the event that the accused has already con - fessed or wishes to confess, an attempt must be made to compensate for damages to the greatest possible extent, since this not only con - stitutes a mitigating factor but may enable the possibility of a settlement according to the Aus - trian Criminal Code (diversion or withdrawal from criminal proceedings). In such a case, where the preconditions are given, it may be possible to work accordingly towards diversion.
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