The woodcock mating season has just ended and deer-hunting season has already begun. Are officials allowed to accept an invitation to a hunting trip, or should they be paying the shooting fees and other costs? In connection with hunting activities there is often an overlap in professional and private spheres. It is common knowledge that some hunters tend to be quite competitive. An anonymous complaint against a hunting fellow is filed quickly. However, what might easily create the impression of frowned upon sweetening, "old boy networks" or even corruption in the case of inviting officials, might not always be a crime.
- "Sweetening" of officials
Anti-corruption law is applicable even prior to any official tasks being carried out. Austrian anti-corruption law includes the so-called "sweetening" of officials (acceptance of an advantage by the official or the giving of an advantage to the official in order to carry out an undue influence).1 "Sweetening" means the acceptance or giving of advantages in order to encourage officials to act in a more favourable manner towards them, and, thus, influencing the exercise of their work.2 There are numerous "advantages" one can offer as "sweetening", such as an invitation to a hunting trip. In exchange, the hunting host might expect a more favourable exercise of the official's discretionary powers, or for the handling of a case to be carried out more swiftly. The law provides for imprisonment of up to five years in this case.
It is important to note that "sweetening" does not require a causal connection between the (unlawful) giving of an advantage and the specific official act. In contrast to bribery, it is not relevant whether the official acts dutifully or not. "Sweetening" thus includes generally influencing the future exercise of an official's powers or responsibilities, the official requesting an advantage, accepting an undue advantage, or agreeing to receive an advantage.
One of the subjective elements of the criminal offence is "the aim to influence the future exercise of the official's powers or responsibilities", thus the "intention to influence". Gifts or advantages given out of genuine gratitude do in general not constitute a criminal offence. This is also relevant for advantages that are exclusively gained - only for private reasons. However, the relevant acts might constitute a criminal offence, if the advantages are obviously not exclusively based on a private motive. Thus, it is difficult in practice to assess the "motivation on which the advantage is based" and to provide relevant evidence.
When assessing the facts from a criminal law perspective, each individual case must be evaluated based on all relevant circumstances.3 The German Supreme Court stated that, inter alia, the credibility of a different motivation (other than influencing the exercise of the official's powers and responsibilities), the official's position, the conduct (secrecy or transparency) as well as the nature, value and number of advantages are relevant for the assessment under criminal law. The legislative materials to the Anti-corruption Amendment Act 2012 also refer to this decision. However, how can it be determined whether an act is the result of private or professional circumstances?
- Does it constitute the criminal offence of "sweetening" if officials are invited to hunting trips?
The motivation of the involved parties is crucial for the assessment as to whether the elements of the criminal offence "sweetening" are fulfilled. To the extent hunters repeatedly go on hunting trips, invite each other to hunting trips on a regular basis, maintain friendly relationships beyond their hunting activities, and do not keep their hunting trips a secret, such circumstances do as such not indicate criminal behaviour as long as there is no actual "intention to influence" behind it. Even the legislative materials in connection with the Anti-corruption Amendment Act 2012 state explicitly that invitations to hunting trips based on the relationship between friends and reciprocity shall not be subject to punishment.
However, questions in relation to the motivation and purpose of an invitation addressed to an official are primarily a question of the assessment of evidence, which is reserved for the public prosecuting authority and criminal courts. Consequently, it is recommended to provide an in-depth assessment of invitations among long established fellow hunters, taking criminal law into consideration, especially if officials who are exposed to the public are involved.1 Sections 306 and 307b Criminal Code (StGB).2 Report of the Justice Committee, notes to the protocol of the National Council 24th legislative period, p 10.3 Information leaflet to the Anti-corruption Amendment Act 2012 (KorrStrÄG 2012), Ministryof Justice, p 52; notes to the protocol of the National Council 24th legislative period, p 10.