AUSTRIA Law and Practice Contributed by: Michael Rohregger, Rohregger Rechtsanwälte
“Diversion” or “Withdrawal from Criminal Proceedings” Under certain circumstances, the possibility exists that the public prosecutor’s office/the court withdraws from the prosecution (“diver - sion” – settlement according to Section 198 (and following) of the Austrian Code of Criminal Procedure ( Strafprozessordnung ). The perpetra - tor needs to fulfil certain conditions, in particu - lar, making good losses, payment of a monetary amount or charitable contributions. Above all, in order for diversion to enter into consideration, the facts must be clarified and the perpetrator must assume responsibility therefor (as a rule, a confession is thus required). Furthermore, the degree of the perpetrator’s guilt may not be serious and the offence may not be subject to a custodial sentence of more than five years. Therefore, in the case of more major corruption cases, diversion does not enter into consid - eration. Further restrictions exist in the case of abuse of official authority. In terms of penalties, Austrian criminal law pri - marily has monetary fines and custodial sen - tences. Under criminal law on corruption, custo - dial sentences in principle range up to ten years (or more, in exceptional instances). Even in the event of several offences, the maximum penalty may only be applied in full on a single occasion. Indeed, where several offences are adjudged simultaneously, in criminal trials, the “absorp - tion principle” applies (Section 28 of the Austrian Criminal Code), which states that, despite the commission of several criminal offences, only a single penalty – and not, for instance, a series of individual penalties (“accumulation principle”) – 5. Penalties for Violations 5.1 Penalties on Conviction
is imposed. This penalty is to be determined in accordance with the law that imposes the high - est penalty. If, for instance, a perpetrator commits an offence subject to a custodial sentence of up to one year and a further offence subject to a custodial sen - tence of between six months and five years then the penalty shall be fixed between the bound - aries of six months and five years. Within this framework, the specific penalty shall be imposed in accordance with the general criteria applied to determination of a penalty (regarding the per - petrator’s guilt, etc, see Section 32 et seq of the Austrian Criminal Code). Custodial sentences and monetary fines are thus subject to upper limits (“capped”). The maxi - mum custodial sentence is based directly on the wording of the law (eg, Section 304 (1) of the Austrian Criminal Code: “Custodial sentence of up to three years”, but considers the possibility of exceeding the upper limit in Section 39 of the Austrian Criminal Code). With regard to monetary fines, the Austrian Criminal Code applies the system of daily rates. For instance, commission of a criminal offence is subject to imposition of a certain number of daily rates – 360, or a maximum of 720 (eg, Section 153a: “[…] or a monetary fine of up to 720 daily rates”). This means that the perpetrator must pay a specific monetary amount per day for a specific number of days (a maximum of 720, but according to Section 19 (1) of the Austrian Criminal Code, at least two). While the number of days – as in the case of a custodial sentence – is determined according to the general crite - ria applied to determination of a penalty, the amount of the individual daily rate is based on the personal circumstances and the economic capacity of the perpetrator (Section 19 of the
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