Which law applies after a change in Austrian white-collar proceedings? Assess offence dates, criminal liability, penalties and overall effects under § 61 StGB.
Mag. Christopher Angerer, Rechtsanwalt
Your lawyer for criminal defence
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Whether the old or the new law applies to an earlier offence is determined by § 61 StGB when criminal law changes during white-collar proceedings in Austria. The new law applies if the law in force at the time of the offence was not more favourable to the offender in its overall effect. Where both are equally favourable, the new law therefore takes precedence.
For defendants, the particular offence matters: what conduct has been established, which statutory elements are satisfied and what legal consequences follow under each version? The issue is not settled by a lower maximum penalty alone. The defence must also identify the time of the offence, qualifying elements and procedural stage.
Would you like the applicable legislative version reviewed?
This assessment identifies issues for review. It calculates neither a penalty range nor an appeal deadline.
A draft is not an applicable new criminal provision. Before drawing conclusions for your proceedings, have the promulgated text and commencement date checked. The importance of defence under current law and existing hearing dates remains unchanged.
Organise the alleged transactions and available records by date. The time of the offence is not automatically determined by the later discovery of a loss. The conduct must be connected by legal assessment with the legislative versions in force and their transitional provisions.
Start with an examination of criminal liability and the relevant qualifying elements. Then compare the type of penalty, penalty range, and other applicable statutory consequences. Individual favourable elements from different versions may not be combined into a hybrid law.
Have the judgment date, amendment date, and scope of the appeal decision checked. Different temporal rules may apply to reviewing an earlier judgment and making a fresh decision on the merits. Preserve existing deadlines independently of the comparison.
When a person acted or should have acted constitutes the relevant time under § 67 Abs. 1 StGB. A later-occurring result does not determine the time of the offence. In white-collar proceedings, signing a contract, authorising a payment and discovering a loss later may therefore involve different dates that must be distinguished legally.
The legislation in force at that time, the promulgated amendment, and its commencement and transitional provisions are required by the assessment. No new criminal liability is created by a draft. Where several acts are involved, the first question is whether they constitute separate offences or form a single statutory unit of conduct. Under OGH RS0119545, the law in force at the time of its final constituent act governs the assessment of such a unit. Earlier, more favourable law does not apply to its previous constituent acts. This legal grouping is not determined by the length of the proceedings.
The comparison commences with the requirements for criminal liability. Where the old law mandates an additional element yet prescribes the same penalty, the established facts must be examined to ascertain whether that element is satisfied. Should it be satisfied, the abstractly narrower law at the time of the offence is not more favourable for that reason alone, provided the other relevant consequences also remain the same (RS0112939).
The criminal provisions actually applicable, including qualifying offences, are the focus of the Austrian Supreme Court, the OGH (RS0133827). A more serious legal classification or penalty range results from qualifying elements. The comparison concerns provisions that overlap in substance. An earlier qualifying element cannot be replaced as the basis for comparison by a qualifying element created only later and requiring entirely different facts (RS0112939). Proven loss amounts or the particular manner of commission must therefore be allocated precisely to the respective statutory elements.
Should the conduct remain criminal under both versions, the statutory consequences applicable to it are compared. According to OGH case law (RS0089014), the type of penalty is considered first, followed by the relevant penalty ranges. Where the minimum is the same, a lower maximum indicates the more favourable rule. Where the maximum is the same, the lower minimum is more favourable. An assessment of the overall effects is required when ranges overlap.
A temporal assessment is also required for other applicable consequences of the offence, such as asset-related orders. Under OGH RS0119545, the law at the time of the offence may govern such an order even where the offence itself is assessed under newer law. This separate allocation differs from an impermissible hybrid, as favourable elements from different versions cannot be combined arbitrarily within the respective comparison (RS0112939).
Under RS0112939, a separate comparison must be made for each offence covered by the judgment. Consequently, charges involving several business transactions require a traceable allocation of conduct, time and legislative version. Different offences in the same proceedings may consequently be assessed under different versions. This differs from unlawfully mixing provisions within a single comparison.
By transaction and date, existing contracts, approvals, payment records, accounting documents and communications should be organised. The time of an act and the basis of an alleged loss may be disputed. The factual basis is established by documents, whereas deciding which legislative version applies remains a legal question. Merely referring to the more favourable provision cannot replace missing factual findings.
The required comparison must be included in the legal assessment if the law changes before the first-instance judgment. A change arising only during appeal proceedings does not automatically mean that the contested judgment is reviewed under the new law. Unless a transitional provision states otherwise, that review generally follows the law in force when the judgment was delivered (OGH RS0088808).
A fresh comparison may be required when the appeal court reassesses the sentence. Further questions arise if a judgment is set aside and a new decision on the merits is made. The defence must therefore establish precisely which part of the judgment is being reviewed or decided afresh and which transitional rule applies. A new appeal deadline is not opened by a later, more lenient provision by itself.
Different purposes are served by comparing the laws and determining the sentence. The applicable statutory regime is identified by the comparison. The particular penalty within the permitted limits is fixed by subsequent sentencing. The comparison of statutory consequences is not replaced by personal mitigating factors and an expectation of a particular sentence. These issues are expressly separated by the OGH in RS0091928.
For legal assessment, each relevant count should set out the law at the time of the offence, the changes introduced by the newer version, and the resulting legal consequence. The decisive case-file passages must be named by the reasoning, and any evidential gaps must be disclosed. Whether an objection to the legal classification, penalty range, or an asset-related order is supported depends on the proceedings. Hearing dates and appeal deadlines must be observed independently.
The new law applies to earlier conduct under § 61 StGB if the law at the time of the offence was not more favourable in its overall effect. Precedence is therefore given to the new law if both are equally favourable. The particular offence and its statutory consequences are required for the comparison.
An important comparison point is the maximum penalty. First, criminal liability and relevant qualifying elements must be examined. Then, in their overall effect, the type of penalty, minimum and maximum, and other applicable statutory consequences matter.
The OGH prohibits the combination of different legislative regimes. Consequently, a comparison cannot create a hybrid law from individual favourable provisions. Separate offences are assessed individually and may instead fall under different versions.
A judgment is not automatically altered by a legislative change. In appeal proceedings, the decisive factors are transitional provisions and the type of decision. A different assessment is required for reassessing a sentence or making a fresh decision on the merits than for merely reviewing the earlier judgment.
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