OGH: Amendment of Terrorist Acts Bill

Jan 27, 2023 Benn-Ibler Rechtsanwälte GmbH

In 2021, the European Commission criticised Austria's solution for implementing Directive (EU) 2017/541 (the Terrorism Directive) which deals with combatting terrorism. Consequently, new regulations for Section 287c of the Austrian Criminal Code (Strafgesetzbuch, hereinafter StGB) are being proposed.

Section 287c StGB deals with terrorist offences. Paragraphs 1 to 10 (according to the explanatory notes to the government bill) list such acts. Paragraph 5 of this Section previously listed dangerous threats under Section 107(2) of the StGB. This is now deleted and re-regulated in para 2a. The Austrian government bill provides for a prison sentence of six months to five years for anyone who threatens to commit an act described in paras 1-10, “if the person commits an act of terroristic suitability and objective as described in para 1”. This new paragraph is intended to take into account the realisation of all threats with actions according to Art 3 para 1 lit a to i of the Directive on Terrorism. Also, only intentional offences shall be included; “negligent offences” are not to be considered, according to the explanations.

The Austrian Supreme Court (Oberster Gerichtshof) commented on this proposal, emphasising that Section 107(2) in its wording “anyone who threatens to” serves as a model for the provision in Section 278c. However, the insertion “if the person commits an act of terroristic suitability and objective as described in para 1” is not exact on account of the word “objective”. According to the Austrian Supreme Court, this word refers to acts as described in para 2a, thus, to acts of threatening, which in turn require purpose and intention. The Austrian Supreme Court therefore proposed to word the provision as follows:

“Any person who makes a dangerous threat (Section 107(1)) by threatening to commit an act under any of the provisions referred to in subsection (1)(1) to (10) shall, if the threat has the suitability referred to in subsection (1) and if the person acts with the intention referred to therein, be liable to imprisonment for a term of six months to five years.”

Austrian Supreme Court 509 Präs 85/22d (13.12.2022)