Criminal law aspects of the Covid-19 pandemic - Part I

As part of the measures to contain Covid-19, the Austrian legislator has taken precautions to ensure the proper functioning of the Austrian criminal justice system and the administration of justice even in times of the current crisis. On the one hand, courts and public prosecutor's offices remain capable of acting and, on the other hand, lawyers are able to continue to provide their services. In this way, parties affected by criminal proceedings can still exercise their rights in the best and most effective way possible.

In addition to the amendments that mainly had been introduced in criminal procedural law, the last few days increasingly focused on consequences in terms of criminal law, especially in case of violating those measures, which had been imposed by the government to further contain the spread of Covid-19. Furthermore, it should be noted that the tense economic situation of many companies, especially in view of the creditor protection offences of the Austrian Criminal Code, potentially poses further criminal liability risks. The following overview deals with these specific areas.

Relevant innovations in criminal (procedural) law for pending criminal proceedings

The 2ndAustrian COVID-19 Act (Federal Law Gazette I 16/2020) allows the suspension of all time limits in administrative, civil and criminal proceedings. On this basis, the Federal Minister of Justice issued an ordinance (Federal Law Gazette II 113/2020) on March 23, 2020, which imposes the suspension of the following time limits in criminal proceedings: the period for lodging a complaint pursuant to Section 88 para 1 of the Austrian Code of Criminal Procedure (“CCP”), the period for raising an objection because of infringement of rights pursuant to Section 106 para 3 CCP, adjournments of the main hearing pursuant to Section 276a CCP, the period for registering an appeal for nullity pursuant to Section 284 para 1 and 2 CCP, the period for serving an appeal for nullity pursuant to Section 285 para 1 CCP, the period for registering an appeal pursuant to Section 294 para 1 or Section 466 para 1 and 2 CCP and the period for serving an appeal pursuant to Section 467 para 1 CCP. The respective period shall run anew after the reason, for which the suspension was imposed, ceases to exist. In criminal law, the suspension applies for the duration of the prohibitions to enter certain business premises and places to prevent the spread of the corona virus, which have been imposed by ordinances of the Federal Minister of Social Affairs, Health, Care and Consumer Protection and are currently in force until April 13, 2020.

This is not the case for financial criminal proceedings: The suspension of the time limit currently ends on April 30, 2020. However, if it is necessary to avert urgent threats to certain legal interests or irretrievable damage to a party, the financial criminal authority can completely refrain from the suspension in individual cases and instead set a new, reasonable time limit.

The suspension of time limits does not include - at least up to now - the period regulated in Section 108a CCP regarding the maximum duration of preliminary investigations. Currently, this time limit continues to run despite inevitable delays in proceedings. Furthermore, periods for substantive criminal liability and custody remand are not covered.

Criminal consequences for violating the imposed measures for the containment of Covid-19

The Austrian Criminal Code (“CC”) does not only penalize the intentional and negligent damage to the health of another, but also the fact that a person is intentionally or negligently creating a hazard for humans through contagious diseases such as Covid-19. According to Sections 83 et seq CC and Section 88 CC, anyone who intentionally or negligently does damage to the health of another is – in general – liable to imprisonment for up to one year or a fine not exceeding 720 penalty units. If the damage to the health of another reaches a certain severity, this penalty can increase significantly. Regarding the damage to the health of another, the offender acts intentionally if he seriously considers the damage as possible and accepts it nevertheless. On the other hand, the offender acts negligently if he disregards his duty of care to which he is obliged under certain circumstances. However, if a person is solely creating a hazard to health, one cannot be held criminally liable pursuant to Sections 83 et seq CC or Section 88 CC.

In case of creating a hazard to health, Sections 178 CC or 179 CC can intervene under certain circumstances. According to them, anyone who intentionally or negligently engages in a conduct capable of creating a danger that a contagious disease to humans or one that requires mandatory notification or reporting, may spread is liable to prosecution. Anyone who commits the offence intentionally is liable to imprisonment for up to three years, anyone who negligently created a hazard is liable to imprisonment for up to one year or a fine not exceeding 720 penalty units. In these cases, the potential hazard of spreading the disease is sufficient. The actual occurrence of a damage to the health is not required. Irrespective of whether or not he/she violates the imposed regulations for the containment of Covid-19, anyone who causes the risk of spreading the virus because of his/her conduct - if the infection with Covid-19 was recognisable to him/her or if he/she even seriously considered it as possible and accepted it nevertheless to cause such a risk - may also be liable to prosecution.

Furthermore, it should be noted that the Austrian Epidemics Act 1950 and the aforementioned Covid-19 Act also penalize violations of issued regulations based on these laws, such as notification and reporting obligations, traffic and access restrictions, etc. However, these are administrative penalties, which can be very severe as fines - as for example in the case of the unauthorised operation of business premises.

Notes on commercial criminal law risks during the Covid-19 crisis

Although, as already mentioned above, court operations have been reduced to a minimum, it has to be pointed out that even during this extremely tense economic situation, in which many companies and businesses are threatened by insolvency or have already become insolvent, all criminal offences will continue to be prosecuted. Criminal liability risks due to breach of trust (Section 153 CC), fraudulent insolvency (Section 156 CC), detriment to other creditors (Section 157 CC), undue advantaging of a creditor (Section 158 CC), grossly negligent interference with creditor demands (Section 159 CC) or due to untenable representation of fundamental information concerning certain legal entities (Section 163a CC) are, as experience shows, to be given special attention especially in times of crisis.

All entrepreneurial activities should therefore be critically scrutinized especially now with regard to this core area of commercial criminal law. Experience has shown that situations of (imminent) insolvency lead to entrepreneurial conduct that entails a risk of criminal liability (see the aforementioned offences), which should not be underestimated. Especially now, the regular assessment of insolvency and over-indebtedness should therefore be carried out with particular care. It needs to be considered that the period for filing an insolvency application was extended (from 60 days to 120 days after the insolvency had occurred). This provision was also decided in connection with the measures for the containment of Covid-19. Nevertheless, it does not result in any change regarding a potential criminal liability due to creditor protection offences, which need a precondition in terms of insolvency. Insolvency does not depend on whether insolvency proceedings have been initiated, but continues to be determined by the same criteria as before the Covid-19 pandemic crisis.

If you have any questions regarding criminal law issues in connection with the Covid-19 pandemic crisis, our attorneys at wkk law Dr Norbert Wess, Mag Markus Machan and Dr Vanessa McAllister will be pleased to provide you with legal expertise at any time.