All sanctions are criminal penalties within the meaning of Art. 6 of the European Convention on Human Rights, even if they are imposed by administrative authorities (fiscal offence prosecution authorities).
The following penalties may be imposed under the FinStrG:
- Monetary fines
- Custodial sentences in default of payment
- Primary custodial sentences
The monetary fine to be imposed basically depends on the amount of tax evaded or underpaid. Thus, for instance, tax evasion and smuggling are subject to a monetary fine of up to two times the amount evaded and a custodial sentence of up to two years. Some offences are also subject to fixed maximum penalties.
Forfeiture constitutes a pecuniary penalty which may be imposed in the case of intentional customs offences. If forfeiture cannot be executed, because, for instance, the smuggled goods have already been sold, the penalty of compensation takes its place.
Custodial sentences in default of payment:
If an offender is not able to pay a monetary fine, then a custodial sentence is imposed in place of payment. The duration of the custodial sentence is based on the identity of the decision-making official body:
- Court: Two years maximum
- Appraisal court (Spruchsenat): Three months maximum
- Single civil servant: Six weeks maximum
Primary custodial sentences:
These may only be imposed by the courts, either as an option in addition to a mandatory monetary fine, or on a mandatory basis. The Fiscal Offences Act provides for mandatory custodial sentences for the fiscal offence of fiscal fraud for a maximum period of up to 10 years, and for commission of an offence as a member of a gang or using violence up to a maximum of 5 years.