Acceptance of advantages to interference (Sec 306 StGB)
Pursuant to Sec 306 of the Austrian Criminal Code (StGB), an office bearer or adjudicator is liable to prosecution if – with the exception of the cases of Sec 304 and Sec 305 StGB – they demand an advantage for themselves or a third party or accept an undue advantage or allow themselves to be promised one, if the perpetrator acts with the intent to be influenced in his work as an office bearer or adjudicator.
As a special offense, the offense of accepting an advantage to interference according to Sec 306 StGB can therefore only be committed by office bearers or adjudicators and is therefore a special offense under criminal law on corruption.
In addition, the offender must act with the intent of allowing himself to be interferenced in his activities as an office bearer (Sec 74 para 1 no 4 StGB) or adjudicator (Sec 74 para 1 no 4a StGB) by demanding an advantage or by accepting or accepting the promise of an undue advantage. The offender must therefore seriously consider it possible and accept the fact that, within the scope of his area of responsibility, he could act in any way for the person from whom he demands, accepts or allows himself to be promised the advantage in the performance of his duties.
Furthermore, it is not decisive whether the intent is linked to conduct in breach of duty or in accordance with duty. It is sufficient for criminal liability that the advantage is aimed at benevolent, future treatment, be it of a substantive or procedural nature (e.g. faster completion of an order or faster decision making).
The decisive factor is also the nature of the advantage. Anyone who accepts or is promised only a minor advantage is not to be punished unless the offense was committed on a commercial basis (Sec 70 StGB). A minor advantage is an advantage that has a value of less than EUR 100.
Giving an advantage to interference (Sec 307b StGB)
Any person who, except in the cases under Sec 307 StGB and Sec 307a StGB, offers, promises or provides an undue advantage to an office bearer or adjudicator or to a third person intending to influence him in his work as an office bearer or adjudicator, commits the offense of giving an advantage to interference.
Sec 307b StGB therefore constitutes the active corruption offense and thus the counterpart to Sec 306 StGB due to the active giving of advantages to influence future official activities. There is therefore only a difference in the group of perpetrators and the offense. While the acceptance of an advantage to interference requires an office bearer or adjudicator as the perpetrator, the perpetrator of the giving of an advantage to interference can be anyone who offers, promises or grants an advantage in the sense described.
Impending penalties
The basic penalty for both offenses is imprisonment for up to two years in accordance with Sec 306 para 1 StGB and Sec 307b para 1 StGB. Both offenses also provide for value qualifications, which apply if the value of the advantage exceeds EUR 3,000 or EUR 50,000. Pursuant to Sec 306 para 2 and Sec 307b para 2 StGB, anyone who commits the offense in relation to an advantage with a value exceeding EUR 3,000 is liable to a custodial sentence of up to three years. However, anyone who commits the offense in relation to an advantage with a value exceeding EUR 50,000 is be punished with imprisonment of six months to five years.
Advantages and favors: The limits of accepting and giving advantages
The following examples show how difficult it can be to draw a clear line between punishable acts to illegal forms of influence and legal forms of sponsorship:
- The acceptance of donations of goods is not in itself relevant under Sec 306 StGB. If the office bearer accepts a donation of goods without any further intent to be influenced by it, this conduct is generally not punishable under the corruption offenses of the StGB. In a further step, however, possible criminal liability under Secs 153, 153a StGB and the admissibility of this conduct under disciplinary law must be examined.
- If an expensive watch or a vacation trip is given to an office bearer with the intent of influencing the recipient for future applications for approval, this is a punishable act of giving an advantage to interference in accordance with Sec 307b StGB.
Compliance measures for the prevention of corruption offenses
The implementation of compliance measures is strongly recommended in order to prevent possible cases of corruption. A compliance management system that focuses on the specific risk factors of the organization and in this sense specifically reduces the risk of possible corruption offences is therefore essential.
The integration of codes of conduct that sensitize employees and managers to possible violations and questionable giving and accepting advantages creates a basis that already proactively contributes to the containment of corruption offences. Such codes should generally contain general regulations on dealing with public officials, guidelines on donations and sponsoring or regulations on binding reporting obligations to the compliance bodies. In addition, the introduction of a four-eyes principle, i.e. an independent cross-check of possible acceptance or giving of advantages, should be considered in order to further minimize the risk of violations.
Another important and fundamental pillar of an efficient compliance measures program is training in the form of presentations & workshops, in which employees are prepared for specific situations and learn how to behave in them. Experts in the field of criminal anti-corruption law provide useful tips, present aspects from a different perspective and thus help employees to better understand internal compliance guidelines.
Effective criminal defense by a specialized lawyer
Corruption proceedings can be lengthy and complicated. The choice of a criminal defense lawyer specializing in corruption criminal law can be of considerable importance for the further course of criminal proceedings.
A criminal defense lawyer knows how to effectively navigate through criminal proceedings, which motions to file and which deadlines to meet in order to achieve the best possible outcome for their client.
In the event of an accusation of accepting or giving an advantage to interference, it is strongly advisable to consult a criminal defense lawyer who will endeavor to effectively defend the interests of the accused. Since , for example, the criminal offense of Sec 307b StGB does not require a specific reference to an official act, the extended intent to interference future official activity plays a significant role. However, this is naturally an “internal process” that is very difficult to prove in practice. An experienced criminal defense lawyer develops a strategy to be able to introduce exculpatory evidence into the proceedings in the best possible way and to ensure the protection of his client’s rights.
