OGH: ‘Apparently Official Communication’ No Abuse of Office

Nov 25, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that sending an ‘apparently official communication’ does not constitute abuse of office (Section 302 of the Austrian Criminal Code, Strafgesetzbuch).

The defendants were, among others, an officer of the Vienna Building Inspection and the general manager of a real estate company. The latter had been selling flats in a local residential building where a beam of the flat-roof had cracked, making it impossible to access the roof terrace due to danger of the roof caving in. As it turned out, the beams had not been fitted in conformity with the authorised construction plan (in its final version). The owners' association therefore decided to reinforce the beam, for the renovation costs of which the defendant manager would be liable. This is why he made efforts to find a more cost-effective solution.

In order to convince the owners' association of his plan, the manager asked the officer (who was no longer in charge of the building) to write a letter to persuade the owners to find a more cost-efficient solution. The officer, who had not examined the problem in the building, said that he could not issue an official notice, but he could write a note for the manager to use. Using official letterhead paper of the City’s department, the officer wrote a note stating that a building defect had been detected and that steps to remedy the problem in compliance with the final version of the construction plan would have to be undertaken.

According to the court of first instance, the officer had thereby abused his fundamental authority to act as a representative of the City’s department by ‘sending what appeared to be an official communication’. The manager was held to be the instigator.

The Austrian Supreme Court, however, acquitted the defendants.

According to case law, mere administrative activity that isn’t a legislative instrument can constitute abuse of office, but only if such an activity is specifically connected to a (possible) act of public authority. This was not the case with this ‘seemingly official communication’, also because the officer had previously stated that he would not issue any formal notice. The allegation that the defendants had harmed the City of Vienna in its right to lawfully remedy building defects after examining the facts of the case was also insufficient to establish intent of abuse of office.

OGH 14 Os 20/22f (28 June 2022)