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Report No. 258

B. Austria33

33 The information on Austria has been taken from the 'Country Review Report of Austria', Review by Israel and Vietnam for the review cycle 2010-2015, United Nations Office on Drugs and Crime. See also Executive summary on Austria, Note by the Secretariat, Fifth Session of the Implementation Review Group, Conference of the States Parties to the United Nations Convention Against Corruption, UN Doc. No. CAC/COSP/IRG/I/3/1/Add.11(2014).

3.3.1 Austria signed the UNCAC in 2003 and ratified it in 2006. The legal framework against corruption in Austria mainly includes provisions from the Constitution, the Penal Code and the Criminal Procedure Code. Austrian law complies fully with all provisions of the UNCAC. The authorities involved include the Federal Ministry of Justice, the Federal Ministry of Interior and its Federal Bureau of Anti-Corruption, the Central Office for Prosecuting Economic Crimes and Corruption and the Criminal Police Office.

3.3.2 For the implementation of its obligations under clause (a) of Article 15, Austrian law penalises the offence of active bribery of national public officials through sections 307 (active bribery involving a breach of duties), 307a (granting of advantages), 307b (granting of advantages for the purpose of exercising influence) and 302 (abuse of official authority) of the Penal Code.

Passive bribery of domestic public officials, which is covered under clause (b) of Article 15, is implicated under sections 304 (passive bribery involving a breach of duties), 305 (acceptance of advantages), 306 (acceptance of advantages for the purpose of exercising influence) and 302 (as discussed previously) of the Penal Code.

3.3.3 In the context of paragraph 1 of Article 16, Austria penalises the active bribery of foreign public officials and officials of public international organisations through the same provisions as the one used to implement its obligations under clause (a) of Article 15. In this regard, the offences under section 307 to 307b do not specifically differentiate between domestic or foreign public officials or officials of public international organisations thereby implying their application to both (which has been confirmed by Austria in its Country Review Report).

Further the definition of a "public official" under section 74 of the Penal Code, specifically includes any person who as an organ or as an employee discharges tasks of legislation, administration or justice for another state or for an international organisation (paragraph 1(4a) of section 74). Section 302 of the Penal Code however is only applicable to national public officials and not to others.

In relation to paragraph 2 of Article 16, the Austrian law does not differentiate between national and foreign public officials and officials of public international organisations in the context of the offence of passive bribery with the exception of section 302 that only applies to national officials. Sections 304, 305, 306 of Penal Code are relevant for the offence of passive bribery of foreign public officials and officials of public international organisations.

3.3.4 In respect of the implementation of Article 42 read in conjunction with Article 4 of the UNCAC, section 64 of the Austrian Penal Code allows for the exercise of national jurisdiction without the dual criminality requirement for criminal acts committed against an Austrian official abroad, and for criminal acts committed by an Austrian official abroad.

For other offences, jurisdiction is established subject to dual criminality requirement, in the instance that the offender is an Austrian citizen or a foreigner, who was arrested in Austria and cannot be extradited to a foreign State for other reasons than the nature or other characteristics of the offence (section 65, Penal Code). Consequently, the Austrian legislation not only provides for the jurisdiction to prosecute when extradition is denied due to nationality but also covers situations of the denial of extradition for reasons unrelated to the nature of the offences.



Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations - A Study and Proposed Amendments Back




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