Passive Bribery (Sec 304 StGB): Elements of the offense
An office bearer or adjudicator who demands, accepts or accepts the promise of a benefit for himself or a third person in return for the unlawful execution or omission of official duties is liable for passive bribery under Sec 304 StGB. Similarly, anyone who is an expert commissioned by a court or another authority in relationship for particular proceedings demands, accepts or accepts the promise of a benefit for themselves or a third person in return for presenting false results or a false opinion is also guilty of passive bribery.
Since the Corruption Criminal Law Amendment Act 2023 (KorrStrÄG 2023), criminal liability also extends to candidates for office who demand, accept or accept the promise of benefits for the performance or omission of official acts in breach of duty in advance, even before obtaining the specific position of office. The decisive factor here is that the criminal liability of the person demanding the benefit depends on whether he ultimately obtains the position of office bearer.
Office bearer
Passive bribery (Sec 304 StGB) is a special offense that can only be committed by office bearers. The term “office bearer” and which persons are to be subsumed under it is therefore essential.
According to Sec 74 para 1 no 4a lit b StGB, office bearer are persons who perform legislative, administrative or judicial duties for a regional authority (federal, state or local government), for another person under public law (with the exception of churches and religious communities), for another state or for an international organisation as an organ or employee.
An office bearer can therefore only be someone who represents one of the aforementioned legal entities externally on the basis of a power of representation as an organ or who is employed there as an employee in return for remuneration and is integrated into the organisational structure.
Office bearers are also persons who act as a body or employee of a company in which one or more domestic or foreign public authorities directly or indirectly hold at least 50 per cent of the capital. Sec 74 para 1 no 4a lit b StGB also covers companies operated or actually controlled by the public sector and companies controlled by the Court of Audit or similar institutions.
Official business and breach of duty
Official acts by office bearers are all legal acts and de facto activities that serve the direct fulfillment of the enforcement tasks of a legal entity and thus belong to the actual object of the respective official business and are relevant for the achievement of the official enforcement objectives. In contrast to the misuse of official authority under Sec 302 StGB, the term “official business” under Sec 304-307a StGB refers to both sovereign administration and private sector administration. Another element of the offense under Sec 304 StGB is the breach of duty of the official act resulting from the violation of specific legal provisions, official instructions or other binding requirements. In addition, any form of partiality in the performance of official duties constitutes a breach of duty.
“Benefit” in the sense of criminal law on corruption
Another key element of passive bribery is the link between the benefit and official business.
Benefits in the sense of corruption offenses are both material and immaterial benefits that are suitable for bringing about an improvement in the economic, legal, social or professional position. It is irrelevant for criminal liability whether the benefit is granted to the office bearer himself or to a third party (such as a family member or a legal entity).
Material benefits are all benefits that increase assets in an objectively measurable way, such as money, free or particularly favourable services, paid trips or tickets for sporting or cultural events.
Intangible benefits are, for example, social or professional benefits, such as the promotion of a career or support for a job application.
Acts and intent
The offense consists of demanding, accepting or accepting the promise of a benefit for the performance or omission of an official act in breach of duty.
It is important to note that passive bribery is an intentional offense that requires at least conditional intent on the part of the perpetrator in accordance with Sec 5 para 1 StGB and relates to all elements of the offense, i.e. the official capacity, the act, the benefit and the factual connection between the breach of duty of the official act and the benefit.
Active Bribery (Sec 307 StGB): Elements of the offense
Anyone who offers, promises or provides a benefit to
an office bearer, adjudicator or a third person intending to influence or omission of an official act in breach of duty is liable to prosecution under the offense of bribery pursuant to Sec 307 StGB.
Likewise, anyone who offers, promises or grants an expert a benefit for him or a third party in return for providing an incorrect report or expert opinion is liable to prosecution (Sec 307 para 1 StGB). In addition, since the KorrStrÄG 2023, anyone who offers, promises or grants a benefit to a candidate for an office for the performance or omission of an official act in this capacity in breach of duty for him or a third party in the event that he becomes an office bearer is also liable to prosecution under Sec 307 para 1a StGB. The perpetrator who offers or promises a benefit is only to be punished if the candidate for an office has actually obtained the position as an office bearer in the end.
The offense of bribery consists of offering, promising or granting a benefit. In contrast to passive bribery under Sec 304 StGB, active bribery under Sec 307 StGB therefore involves the active “donor side” of the briber.
The offense under Sec 307 StGB can be committed by anyone and must be directed at an office bearer to whom the offender offers, promises or grants the benefit.
Impending penalties for allegations of bribery and corruption
The penalty for both active and passive bribery depends on the value of the benefit. In principle, both the offense of passive bribery pursuant to Sec 304 para 1 StGB and the offense of active bribery pursuant to Sec 307 para 1 StGB are punishable by imprisonment of up to three years.
However, if the value of the benefit exceeds EUR 3,000, the penalty ranges from six months to five years’ imprisonment. If the benefit exceeds the value of EUR 50,000, prison sentences of one to ten years may be imposed. If the value of the benefit exceeds EUR 300,000, the offender is liable to a prison sentence of one to fifteen years.
Examples of corruption offenses
Passive Bribery (Sec 304 StGB)
- Anyone who, as a member of a legislative body, e.g. the National Council, is promised a benefit (such as a “lobbyist’s fee” or free renovation work on a private home) for themselves or a third party in exchange for influencing or attempting to influence legislation, commits Sec 304 StGB (OGH 17 Os 20/13i).
- An expert appointed by a court or an authority for a specific procedding is punishable for corruption if he demands, accepts or accepts the promise of a benefit for the provision of an incorrect report or expert opinion.
Active Bribery (Sec 307 StGB)
- Anyone who offers an employee of a company controlled by the public sector a benefit in order to obtain a certain contract and to induce the employee to decide in the interests of the bribe-giver commits Sec 307 StGB, if he acts with the corresponding intent.
- A carpenter who promises a mayor unpaid services on his private house in exchange for refraining from the public tender for the interior design of the municipal office and placing the order directly with him is liable to prosecution under Sec 307 StGB.
Anti-corruption: the role of compliance measures
Compliance measures are also crucial in the public sector and therefore for various organizations in order to proactively combat corruption offences such as bribery and corruption. With a comprehensive compliance strategy, organizations can actively combat corruption and establish a culture of integrity and transparency.
In order to prevent corruption offences, it is necessary to identify potential risk areas within an organization. There is often a lack of regulated control structures to avoid conflicts of interest that can prevent misconduct.
It is also important to be aware of existing guidelines and codes of conduct and to comply with these requirements. The training of employees in state-related companies on the one hand and of office bearer in authorities and public institutions on the other is therefore essential in order to draw attention to possible risks and to be able to contain corruption risks.
In addition, internal control mechanisms such as regular audits and a whistleblower system should be established in order to uncover suspicious cases in the course of internal investigations.
Criminal defense in cases of corruption allegations: The importance of a specialized lawyer
In the event of allegations of bribery or corruption, it is advisable to consult a lawyer specializing in criminal law on corruption as soon as possible. A lawyer will examine your individual circumstances, analyse the legal options and develop a suitable defense strategy on this basis. A criminal defense lawyer represents the interests and rights of the accused before the prosecuting authorities, ensures that all deadlines are met, and can make a significant contribution to a favourable outcome.
