Criminal specificity principle (Austria)

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The principle of certainty in Austrian criminal law means that there may be no punishment without a law ( nullum crimen, nulla poena sine lege ). The criminal liability of an act must be clearly defined by law. Gaps must not an accused person to the detriment designed to be otherwise is possibly z. B. a violation according to Art 7  ECHR (no punishment without law). Likewise, criminal laws can only have a very limited retroactive effect ( prohibition of retroactive effects ). Art 49  Charter of Fundamental Rights of the European Union (GRC) also standardizes these principles.

Statutory regulations must therefore meet the following criteria:

  • they have to show which specific actions are punishable (clarity requirement).
  • the law must also be accessible (accessibility requirement, publication requirement), and
  • give those subject to the norm a clear idea of ​​what consequences are associated with a certain act (foreseeability requirement).

The use of legal presumptions (see presumption of innocence versus presumption of guilt ) and indefinite legal terms is not fundamentally excluded, but it must be possible to clearly assign them to a specific provision

Principle of certainty in administrative criminal law

The principle of certainty in administrative criminal law (VStG) is based on the principle of certainty under state law and the ECHR , which has constitutional status, and is therefore also unrestrictedly applicable to federal and state administrative criminal law. From the point of view of the need for legal protection, administrative penal provisions therefore require a particularly precise legal determination of the behavior that is punishable and the principle that " an act may only be punished must also be observed for penal provisions of Section 1 (1) VStG and Article 7 ECHR if it was legally threatened with punishment prior to its commission, and criminal law provisions clearly and unequivocally allow the criminal behavior to be identified ".

Principle of certainty in disciplinary law

In VfSlg. 11.776 on the principle of certainty recognized that " a conviction for breach of professional duties and for a violation of the honor and reputation of the class on legal regulations or on solidified class views - for which guidelines or the previous (professional) judicature are important - are based on the clarity requirement corresponding certainty "must be established. An authority therefore does not comply with the requirement stemming from Art. 7 ECHR if " instead of naming the specific professional ethics against which an incriminated behavior violates - it is satisfied with citing case law ."

See also

Individual evidence

  1. ↑ See: § 1 Abs. 1 StGB, Art 18 Abs 1 B-VG and Art 7 ECHR.
  2. ↑ VfSlg 11.520 / 1987: Offenses for which a violation is linked to a threat of punishment must therefore be drafted in such a way that doubts about the legality of their behavior in relation to the offense cannot arise for the individual.
  3. ↑ See also: Diethelm Kienapfel , " Strafrecht Allgemeine Teil ", 4th edition, Vienna 1991 Manz Verlag, p. 10.
  4. ↑ EGMR Yearbook 17 (1974), 228, 290; ECHR of 26 April 1979, A-30 - Sunday Times v United Kingdom , A-130 - Olsson v Sweden , A-316 - Miloslavsky v United Kingdom; ECJ Coll. 1990 - Vandemoortele NV v Commission .
  5. ↑ ECHR of November 15, 1996 - Cantoni v France .
  6. ↑ See e.g. B. VfGH decision G203 / 2014.
  7. ↑ VfSlg. 13785.
  8. ↑ VwGH of January 25, 2005, 2004/02/0284. See also VwGH of April 29, 2002, 2000/03/0066.
  9. ↑ VfGH in B 1381/07 of September 23, 2008.