Misuse of authority (Sec 302 StGB): Elements of the offense
Misuse of official authority pursuant to Sec 302 StGB is committed by a government official who intentionally misuses his authority to execute official duties as an organ and in the name of the Republic of Austria, a State, a municipalities association, a municipality or another entity under public law intending thereby to violate the rights of another.
Government official, sovereign administration
Misuse of office is a special offense that can only be committed by government officials. According to Sec 74 para 1 no 4 StGB, government officials are persons who are appointed to perform as a legal act on behalf of the Federal Government, a State Government, a municipalities association, a municipality, or another person under public law, as their governing body or are otherwise authorized with federal, state or municipal administrative functions.
Government officials are therefore all state bodies such as the mayor, the local councilor or the members of the Federal Government. However, government officials also include members of the judiciary, in particular judges, public prosecutors and judicial officers. In addition to the Federal Government, States and municipalities, relevant legal entities also include various interest groups such as chambers of lawyers, notaries and doctors, chambers of labor and commerce, the Austrian Students’ Union, universities and public health, accident and pension insurance institutions, meaning that their employees can be government officials. The definition of a government official under criminal law is to be understood functionally and distinguished from disciplinary law.
In the context of sovereign administration, an act must be carried out “in execution of the law”, whereby the misuse of authority lies in the power of command and power of enforcement vested in the state. Private economic administration and activities within the framework of legislation are therefore not considered acts of misuse of authority. Typical official acts in the sense of sovereign administration are, for example, ordinances, notices, acts of direct administrative command and enforcement power or the issuing of judgments or resolutions. This also includes so-called “simple sovereign administration”, which is closely related to acts of execution.
Misuse of official authority can consist of both active action and omission. For example, the violation of statutory reporting obligations can constitute misuse of authority by omission.
Misuse of authority
Another element of the offense is the intentional misuse of authority by a government official. This means that they must know that their conduct violates legal norms, i.e. is objectively unlawful.
In principle, a government official cannot be accused of abusing his official authority if he acts within the scope of discretion granted to him. However, if they knowingly make decisions within this scope according to unobjective criteria, such as party-political considerations, this constitutes misuse of authority if there is intent.
In addition to the knowing nature of the misuse of authority, a further prerequisite for criminal liability is that the perpetrator has the intent to harm another person’s rights through the misuse of authority. Such rights are, in particular, individual rights of natural or legal persons, such as property, ownership, intellectual property and personal rights. They also include specific public rights, such as the right to collect taxes, the preservation of undeveloped land/grassland or the withdrawal of a business license.
Impending penalties for misuse of official authority and possible consequences under service law
The basic penalty for misuse of official authority under Sec 302 para 1 StGB is a prison sentence of six months to five years.
However, in the case of serious, so-called qualified offenses, the penalty is imprisonment for between one and ten years. An offense is qualified if the government official commits it while conducting official duties with a foreign power or a supranational or intergovernmental institution. Even if the misuse of official authority results in damage exceeding EUR 50,000, the offense is considered qualified. In this case, too, the penalty therefore ranges from one to ten years’ imprisonment. Even the initiation of investigation proceedings has considerable negative consequences for the accused, such as reputational damage. However, anyone who commits misuse of official authority must not only expect a bad reputation or criminal consequences, but also considerable consequences under disciplinary law, such as dismissal or suspension.
Criminal convictions that exceed a prison sentence of one year and relate to acts committed with intent (Sec 27 StGB) are also associated with the loss of office for government officials. The same applies if a custodial sentence that is not conditionally suspended exceeds six months. Misuse of official authority is therefore associated with the risk of loss of office and corresponding accusations should be taken seriously.
Misuse of official authority: Typical scenarios and examples
In practice, misuse of official authority can be realized in many different ways. The following examples show in which situations the offense of misuse of official authority can be fulfilled:
- The granting of an unlawful building permit constitutes misuse of authority in the case of corresponding intent.
- A government official uses his official position to collect confidential information for private purposes without any legal basis or official necessity. With the appropriate intent, he commits the offense of Sec 302 StGB.
- If a government official warns a managing director of a company of an imminent inspection of the same despite an obligation to maintain confidentiality, he is committing misuse of official authority.
Compliance measures to prevent misuse of official authority
To prevent misuse of official authority, it is very important to introduce a certain degree of transparency and accountability into official decision-making processes in order to limit potential gateways for criminal liability risks. In addition, decision-making processes and actions taken should be well documented to make them traceable and verifiable.
Moreover, regular audits or, if necessary, internal investigations should be carried out into the conduct of the office in order to detect problematic actions or decisions in this regard as early as possible and to prevent future cases of misuse.
The implementation of training courses and workshops for government officials conducted by a compliance specialist can make the ever-present risk of misuse of official authority easier to understand and sensitize government officials to its various manifestations.
Legal advice from a criminal defense lawyer in the event of allegations of misuse of office
When there is an accusation of misuse of official authority, there is an urgent need for action. In such a situation, a specialized lawyer has both the necessary legal expertise and the strategic understanding to refute the allegations. Allegations of misuse of official authority are sometimes made in connection with other allegations, such as corruption offenses and commercial criminal allegations.
Persons accused in a criminal investigation of misuse of authority should immediately consult a criminal defense lawyer in order to be able to effectively defend their rights and obtain the best possible outcome.
A key aspect of the defense may be to prove that the accused did not knowingly participate in relation to the alleged misuse of authority at the time of the crime, for example by presenting documents that prove his good faith. In such cases, a concrete and intensive examination of all the facts of the case by an experienced criminal defense lawyer is essential in order to incorporate all exculpatory aspects into the investigation or main proceedings as effectively as possible.
