AUSTRIA Law and Practice Contributed by: Michael Rohregger, Rohregger Rechtsanwälte
Austrian Criminal Code). The perpetrator is to pay such an amount so that merely a subsist - ence level remains. However, also in this case, the law sets out a maximum limit: the maximum daily rate that may be imposed totals EUR5,000. Under certain preconditions, custodial sentenc - es may also be imposed conditionally with a pro - bation period. If a custodial sentence totalling a maximum of two years is imposed, this may be served under certain circumstances by way of house arrest (using an electronic ankle tag). Assets used for the commission of a criminal offence or obtained through the offence may be declared forfeited. This may in some circum - stances also pertain to assets that, at the time of the judicial decision, are not (or are no longer) in the ownership of the perpetrator. Accordingly, this is not a penalty in the strict sense. If a civil servant is sentenced for a corruption offence (or another intentional offence) to a cus - todial sentence of over one year or a conditional custodial sentence of over six months, the civil servant is dismissed from office (Section 27 (1) of the Austrian Criminal Code). Sentencing under the Austrian Corporate Liabil - ity Act may have certain secondary consequenc - es for an entity, such as a restriction on licences under the Austrian Foreign Trade and Payments Act as well as on participation in procurement procedures. 5.2 Guidelines Applicable to the Assessment of Penalties A number of corruption offences provide for a minimum penalty, whereby this does not yet mean an unconditional custodial sentence on a mandatory basis (eg, Section 304 (2) of the Austrian Criminal Code: “Custodial sentence of
between six months and five years”). The basis for assessment of the penalty is the guilt of the perpetrator. In this context, primarily the demerit (Unwert) in terms of the perpetrator’s attitude and action, and the outcome of the offence must be taken into account. The Criminal Code sets out a catalogue of spe - cific aggravating and mitigating factors, whereby aspects not included in this catalogue must also be borne in mind. Particular aggravating fac - tors include circumstances where a perpetrator commits several criminal offences or continues the same over a lengthy period, has received a relevant prior conviction, or where the perpetra - tor is the instigator or ringleader in relation to an offence. The greatest mitigating factor is a repentant confession. Further mitigating factors include if the perpe - trator has previously led a regular life, if they were only involved in a secondary manner, if the offence is already some time in the past, if the proceedings have taken a disproportionately long time for reasons not attributable to the perpetrator or the perpetrator’s defence attor - ney, if the perpetrator was enticed to commit the offence more due to a particularly attractive opportunity and if they seriously attempted to make good the loss caused or to prevent further detrimental consequences.
6. Disclosure Processes 6.1 Disclosure Obligations
An authority that becomes aware of a suspected criminal offence within its statutory sphere of influence is obliged to report the matter to the criminal authorities.
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