If the constitution and the state under the rule of law are to be effective and to endure, law must be enforceable (see the text on the State under the Rule of Law). Its enforcement is the duty of the security authorities (police), the administrative authorities and the courts of law. If legal norms are infringed, the state must respond in order to signal that the law is in force and to demonstrate that it is actually enforced by the authorities. Criminal law is the harshest instrument available for responding to infringements, and the one causing the strongest interference. It should only be applied where other means are insufficient.
The function of criminal law is to protect communal life in society. Criminal law determines which infringements of the social order are deemed to be offences and lays down the punishment incurred by an offender. Communal and social life is primarily governed by social control mechanisms and does normally not need state compulsion. People are usually considerate when dealing with each other in social groups such as family, school, neighborhood, the workplace or associations. They normally know what is expected in living together and what is prohibited. This social order is reinforced by the legal order.
What is a punishment?
A punishment is an evil imposed because of a serious infringement of the law. It is to signal in public the disapproval of such acts. Such an evil may for instance be imprisonment. The imposition of punishments is reserved to the courts of law.
No punishment without law
For a punishment to be imposed, a legal provision must have been broken, and the law must explicitly provide that such breach carries a penalty. The principle “no punishment without law” is one of the most important principles of a state under the rule of law. A punishment must not be imposed for an act or behaviour unless this act or behaviour was explicitly threatened with a penalty by the law at the time it was committed. A court of law may therefore not itself determine which acts shall or shall not be punished – even when the media, public opinion and politics call for an “immediate harsh clampdown”. The amendment of criminal law is strictly reserved to Parliament (see the text on Democracy). The court of law can exercise its power only within the limits set by the legislator. Moreover, it is not permitted to inflict penalties retroactively, nor to inflict penalties that are severer than those incurred at the time the offence was committed.
The decision which offences to penalize varies between civilizations and in the course of history. The question which legal assets are deemed to warrant protection in a society is decided by democratic discussion. The function of criminal law is to protect elementary legal assets, such as life, bodily integrity, property, liberty or sexual integrity.
No punishment without guilt
For a punishment to be inflicted, the offender must have culpably infringed a legal provision: He must be personally guilty of the offence (“No punishment without guilt”, principle of culpability) (see the text on Freedom). If somebody does not act culpably (children under 14, persons of unsound mind), he must not be punished. Guilt is not only a prerequisite for punishment, it also determines its limits: The magnitude of punishment must not exceed the magnitude of guilt. When dealing with an individual case, it may of course be difficult to determine the actual amount of guilt – and thus to mete out a punishment that is appropriate to it.
If the offender is not acting culpably, he must not be punished. However, an offender’s special dangerousness may require the state to take appropriate measures. The function of such measures is preventive. Among those of practical importance is the offender’s committal to a mental institution for criminally insane. It may be ordered irrespective of the offender’s culpability because of the danger emanating from him.
Forms of punishment
The punishments foreseen by Austrian criminal law are primarily fines and imprisonment. A fine obliges the offender to pay a certain amount of money. In determining the amount of fines, the unit of the “daily rate” is used. The aim is to have the offender suffer a sensible reduction of his standard of living through a certain period of time. What he is to be left with is essentially the minimum of subsistence. The number of daily rates imposed depends on the offender’s guilt, i.e. the degree of severity attributed to the offender’s act. The amount of the daily rate depends on the personal circumstances and the financial capacity of the offender. The system of daily rates is to make it possible to determine fines in such a way that offenders are affected by them very much alike, no matter whether they are rich or poor.
Sentences of imprisonment may be for life (“lifelong”) or for a particular term (the minimum being one day and the maximum being 20 years).
Imprisonment sentences and fines need not necessarily be executed, their execution may be suspended. The offender may be placed on probation. This means that the offender is granted a certain probational period. If he does not commit a further offence during that period, he will not be imprisoned or need not pay (part of) the fine. Though the penalty is imposed on the offender, execution is only threatened to him.
The idea behind this is that criminal penalties are the harshest instrument available to the state for responding to infringements of the law. This instrument is to be used with care in order to preserve its effectiveness in those cases where it is necessary. Punishment is to be applied only in those cases and with such intensity as is necessary to achieve its purpose.
What is the purpose of punishment?
Austrian criminal law is guided by the idea that punishment serves to prevent future offences (the technical term, accordingly, is “prevention”). On the one hand, the offender is to be restrained from committing further offences and educated to adopt a law-abiding behaviour (special prevention). On the other hand, the threat and imposition of a punishment is to discourage others from committing offences (general prevention). The population at large is to be signaled that offenders will not go unsanctioned and that there is therefore good cause to abide by the law. On the one hand, the fear of punishment is to deter the population from committing offences, on the other hand it is to increase the population’s confidence in the enforcement of the law.
The concept of retribution, which was dominant in criminal law in former times, and which considers punishment as a means to “pay back” the offender, is alien to the Austrian Criminal Code. Punishment is not an instrument to take revenge on the offender, but to re-empower him for a peaceful coexistence in society (“resocialisation”).
Who determines which punishment is to be imposed?
The imposition of punishments is exclusively reserved to the state. It is within the powers of a court of law, which consists of one or several judges. The court first has to establish whether an individual has in fact committed an offence, and then has to judge which punishment is appropriate. This depends for instance on whether or not the person has a criminal record, on the severity of the damage or injury caused by the offence, and on whether or not the offender has made a confession.
When somebody is convicted by a criminal court, the offence is also entered into a penal register. The person then is said to “have a criminal record”. Such previous convictions may have negative consequences in case of a new conviction, but also in everyday life, as long as they have not been erased in the penal register. Potential employers often demand an excerpt from the penal register, which shows any previous convictions that have not been erased. The effect of a criminal conviction thus goes beyond the penalty itself in that it stigmatizes the offender.
Apart from criminal penalties, which are imposed by the courts of law, the Austrian legal system also provides for administrative penalties, which are imposed by administrative authorities for administrative infringements of minor gravity (such as speeding). Administrative penalties primarily take the form of fines. Confinement imposed by an administrative authority must on no account exceed a period of three months. Administrative penalties are not entered into the penal register, they do therefore not result in a criminal record of the offender.
Alternatives to Penalties
Scientific studies have shown that the crime rate is largely unaffected by the degree of severity of punishment. What matters primarily is that state authorities do respond to crime. These results, as well as the insight that penalties often have a number of negative effects, have since the 1980s led to the development – starting in juvenile penal law – of diversion. It provides an alternative to classical punishment with fines or imprisonment. In cases of minor offences (e.g. bodily injuries, minor thefts) the courts deliberately refrain from convicting the offender and from inflicting classical penalties. Instead, the penal proceedings are conducted in a less formal manner which makes it possible to put a stronger focus on the person of the offender and on the offence committed. As possible measures to be applied under a diversion scheme, the law provides for payment of a certain amount of money, community service, a probation period, and measures of restorative justice. Unlike in classical penal proceedings, the defendant cannot be compelled to cooperate in a diversion scheme. It requires his own willingness to voluntarily agree to the proposed diversional measure. He must be aware, however, that if the diversional measure fails, the formal penal proceedings will be continued. Today, around half of the criminal cases ready for trial are handled under a diversion program.