Review: TUSCULUM, January 30, 2020

Breach of trust (Art 153 Austrian Criminal Code): General purpose tool of judicial authorities?

On Thursday evening, 30 January 2020, Univ-Prof Dr Hubert Hinterhofer from the University of Salzburg and attorney Dr Vanessa McAllister from wkk law Salzburg gave a lecture on "Breach of trust (Art 153 Austrian Criminal Code): General purpose tool of judicial authorities?" in the course of the "TUSCULUM" discussion forum. Developments in legislation and jurisdiction of the last five years on breach of trust pursuant to Art 153 Austrian Criminal Code were discussed.

At the beginning, the new definition of the offence "misuse of authority", introduced by the Austrian Criminal Law Amendment Act 2015 (StRÄG 2015), was discussed in more detail by Univ-Prof Dr Hinterhofer, whereby in particular the question as to who could be considered as the "beneficial owner" mentioned in this definition was examined. Subsequently, attorney Dr McAllister used various case constellations to illustrate who, as the beneficial owner, can remedy a possible misuse of authority carried out by the acting decision-maker (e.g. the managing director of a limited liability company) by means of giving his consent. A more detailed discussion then followed with the groundbreaking decisions issued by the Supreme Court regarding the prominent cases of "Immofinanz", "Telekom", "BZÖ (election brochure)" and "Meinl (commission flows)", which all had been well-covered by the media. Furthermore, attorney Dr. McAllister discussed when donations and sponsoring bear the risk of being prosecuted by judicial authorities as "breach of trust". In addition, attorney Dr McAllister informed about a particularly recent decision of the Supreme Court, according to which active corruption from the perspective of the briber would not automatically result in a prosecution for breach of trust.

In conclusion, Univ-Prof Dr Hinterhofer pointed out the consequences of the Supreme Court's jurisdiction - for example in the recently decided case of the "Salzburg financial scandal" - for the private sector administration of the public sector. The analysis focused on the opinion of the Supreme Court, according to which the same principles apply to rulers of legal entities under public law (e.g. local authorities) as to rulers in the private sector; with the controversial consequence that public interest does not make a difference in the assessment of a criminal liability for breach of trust.

Afterwards, the numerous representatives from both private and public sector had the opportunity to ask questions and to exchange practical experiences.