Abuse of Office in Austria: When Does a Public Official Commit a Criminal Offence?

The allegation of abuse of office is one of the most serious criminal accusations that can be brought against individuals exercising public functions. In particular, official decisions, police measures or the awarding of public contracts may give rise to suspicions that official authority has been knowingly abused.

Not every unlawful or improper official act constitutes the criminal offence of abuse of office. Section 302 of the Austrian Criminal Code (StGB) criminalises certain forms of the deliberate abuse of official authority. The key question is whether the public official knowingly abuses their official powers with the intention of infringing another person’s rights.

What Constitutes Abuse of Official Authority under Section 302 of the Austrian Criminal Code?

Under section 302(1) of the Austrian Criminal Code (StGB), a public official commits the offence of abuse of official authority if they knowingly abuse their power to conduct official business on behalf of a public authority in the enforcement of the law, with the intention of infringing another person’s rights.

The offence therefore requires a public official to abuse the official authority vested in them and to act with the requisite intent to infringe another person’s rights. A mere breach of official duties or an erroneous administrative decision is not sufficient.

Who Can Be Held Criminally Liable for Abuse of Office?

Only apublic official within the meaning of section 74(1)(4) of the Austrian Criminal Code (StGB) can be a direct perpetrator of abuse of office. The criminal law definition of a public official is not limited to individuals holding traditional public-law employment status. What matters is whether a person has been entrusted with the performance of public functions by virtue of their position.

Not every employee of a public institution automatically qualifies as a public official within the meaning of this provision. Furthermore, a distinction must be made between the definition of a public official under section 74(1)(4) of the Austrian Criminal Code (StGB), which applies to abuse of official authority, and the broader definition of an office holder under the anti-corruption provisions.

Examples of public officials: A mayor who is responsible for building permits under the applicable provincial building regulations and exercises public authority in that capacity qualifies as a public official within the meaning of the law. Employees of motor vehicle repair shops who are authorised to carry out periodic vehicle inspections under section 57a of the Austrian Motor Vehicles Act (KFG) (the so-called “Pickerl” inspection) and to issue the corresponding inspection report may also qualify as public officials within the meaning of section 74(1)(4) of the Austrian Criminal Code (StGB).

However, individuals who are not public officials themselves may also be held criminally liable for instigating or aiding and abetting abuse of official authority. This may be the case, for example, where a private individual or entrepreneur induces a public official to abuse their official powers or assists them in doing so. The person involved must act with the requisite criminal intent.

What Are the Legal Requirements for Abuse of Official Authority?

For the offence under section 302 of the Austrian Criminal Code (StGB) to be established, three key elements must be present:

1. Abuse of official authority

The public official must abuse a power conferred on them to conduct official business in the enforcement of the law. The conduct must therefore relate to the exercise of public authority (sovereign administration). This includes, for example, administrative decisions, police measures and other acts involving the exercise of public authority.

Activities carried out in the field of private-sector administration (private-sector administration) are generally not covered by the offence of abuse of official authority.

2. Knowledge of the abuse office

The public official must knowingly abuse their official authority. This means that they must be aware that they are exercising their powers contrary to the applicable legal requirements. A merely negligent decision or an incorrect interpretation of the law is not sufficient to establish the offence.

3. Intent to infringe another person’s rights

In addition, the public official must act with the intention of infringing another person’s rights through the abuse of their official authority. It is therefore not sufficient for an official act to be objectively unlawful. The public official must at least have the infringement of another person’s rights as part of their intent.

Actual harm does not necessarily have to occur. What matters is the public official’s intention to infringe another person’s rights.

Examples of abuse of office:

Ein Bauwerber bittet den befreundeten Bürgermeister darum ihm eine Baubewilligung zu erteilen, obwohl beide wissen, dass die gesetzlichen Voraussetzungen dafür nicht erfüllt sind und dadurch die Rechte eines Nachbarn verletzt werden. Der Bürgermeister macht sich wegen Amtsmissbrauchs nach § 302 StGB strafbar. Der Bauwerber macht sich wegen Bestimmung zum Amtsmissbrauch strafbar.

A police officer uses their official login credentials to access confidential information about a particular individual without any work-related reason and contrary to the applicable legal requirements, and then passes that information on to an acquaintance. The police officer commits the offence of abuse of office under section 302 of the Austrian Criminal Code (StGB).

Abuse of office and corruption – what is the difference?

Abuse of office and corruption offences are often closely connected, but they are legally distinct.

In the case of abuse of official authority under section 302 of the Austrian Criminal Code (StGB), the offence consists of a public official knowingly abusing their official powers with the intention of infringing another person’s rights. Corruption offences, by contrast, focus primarily on the requesting, accepting or granting of advantages in connection with official acts.

A payment or other advantage is not required for the offence of abuse of official authority. A public official may therefore be criminally liable even if they neither receive nor seek any personal benefit.

Conversely, bribery or the acceptance of bribes may occur without the offence of abuse of official authority also being established. Where the respective legal requirements are met, several criminal offences may be committed concurrently.

What Penalties Apply to Abuse of Office?

Abuse of office under section 302(1) of the Austrian Criminal Code (StGB) is punishable by imprisonment for a term of six months to five years.

Section 302(2) of the Austrian Criminal Code (StGB) provides for an increased penalty of imprisonment for a term of one to ten years, in particular where the offence causes damage exceeding EUR 50,000. The same penalty range applies to certain official acts involving a foreign power or a supranational or intergovernmental organisation.

In addition to the criminal penalties, public officials concerned may also face significant consequences under employment and disciplinary law.

What Should You Do If You Are Accused of Abuse of Office?

Anyone facing an allegation of abuse of official authority should seek advice from a criminal defence lawyer at an early stage. Key issues include the specific powers vested in the public official concerned, the lawfulness of the official act and the subjective elements of the offence.

The defence should therefore examine whether official authority was in fact abused and whether the requisite criminal intent can be established. A lawyer can review the allegations and the available evidence, identify circumstances that may support the defence and develop an appropriate defence strategy. In particular, the aim may be to secure the discontinuation of the criminal proceedings at the investigation stage.

Criminal Proceedings for Abuse of Office? Take the Right Steps at an Early Stage.

If you are under investigation for abuse of official authority, seeking legal advice at an early stage is essential. Mag. Markus Weisser, a criminal defence lawyer specialising in abuse of official authority, can assist you in assessing the allegations and developing an appropriate defence strategy.

Contact us to arrange a confidential initial consultation. We provide legal advice and representation during criminal investigations and court proceedings throughout Vienna and across Austria.