The information contained in this table should be updated on a yearly basis.

Transcription

1 Austria national procedures for mutual legal assistance on laundering, search, seizure and confiscation of proceeds of crime (ETS No. 141) Updated 23/01/2017 The information contained in this table should be updated on a yearly basis. Procedure for search (asset-tracing) and seizure The Central Authority (name of the and where available) responsible for mutual legal assistance (including freezing and seizure): Federal Ministry of Justice Department IV 4 Museumsstraße 7, 1070 Wien, Austria Tel: +43 (1) Fax: Mail: team.s@bmj.gv.at If different from the Central Authority, the authority to which the request should be sent (name of the and where available): Channels of communication for the request for mutual legal assistance (directly, or other): S. Art. 24. Means of communication (e.g. by post, fax, 1 ): Austrian judicial authorities accept any means of communication that are capable of producing written records and allow to establish the authenticity of the document. 1 Please indicate if encryption or electronic signature is

2 2 Language requirements: Translations of requests or supporting documents are not Double criminality requirement, if applicable: Requests for search and seizure require dual criminality. Other requirements: for example a link between the proceeds and the criminal offence, or that a request for the confiscation judgment or measure will be made later, or that leave is given by a judge for the seizure of assets/goods: MLA requests must contain a detailed description of the criminal conduct concerned as well as the legal qualification in the requesting State. A link between the proceeds and the criminal offence is If a coercive measure is requested, the absolute necessity and the aim of the requested coercive measure should be indicated properly. Under domestic law, orders for house search, seizure of assets or goods and orders of disclosure of bank accounts have to be approved by a court. MLA requests for coercive measures for search and seizure and disclosure of bank accounts and bank transactions have to be accompanied by an order issued by a court of the requesting State. If the provisions of this State do not foresee a court order for such measures, the requesting authority has to indicate that the internal legal requirements for the measure sought are met according to the legislation of the requesting State. Modalities/requirements for the execution of MLA requests for investigative assistance (search, tracing, special investigative techniques), existence of a central register of real estate/ bank accounts, duration of preservation of bank data, etc.: The central register of real estate is open to public inspection. The central register of bank accounts is held by the Federal Ministry of Finance and contains information on bank accounts and stock deposits in Austrian banks since The information on bank accounts is retained for ten years after the dissolution of the bank account or stock deposit. Access is provided to prosecutors and penal courts for prosecution purposes. Limitation of use of evidence obtained: In principle, there is no limitation of use of evidence obtained. However, the provisions laid down in the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108)

3 3 have to be observed. Modalities/requirements related to the execution of provisional measures (freezing, prejudgment seizing) including lifting of these measures (possibilities to seize (im)movable properties) and applicable time limits, if any: Provisional seizure ( securing ) is admissible if the seized object is likely - to be required as evidence in the further course of the proceedings, - to be subject to private-law claims, or - to serve to secure a court decision on seizure, confiscation, forfeiture, extended forfeiture or another property-law order stipulated by law. Provisional seizure ( securing ) and seizure approved by a court can be lifted if the legal prerequisites do not exist, or cease to exist. It is also possible to seize immovable properties so that they cannot be sold or mortgaged. Orders for house search, seizure and orders of disclosure of bank accounts have to be approved by a court. If the court approves such order, it sets a time limit within which the order has to be executed. Available asset management system including preservative measures,,(for example prejudgment selling), concerning the seized goods: It is possible to sell objects seized for confiscation which bear a high risk of perishing or diminution in value in short time or only can be stored at a disproportionate and excessive price. Procedure for confiscation/ Recognition of foreign decisions. Recovery of confiscated assets. The Central Authority (name of the and where available) responsible for Confiscation/ recognition of foreign judgments/decisions/measures: Federal Ministry of Justice Department IV 4 Museumsstraße 7, 1070 Wien, Austria Tel: +43 (1) Fax: Mail: team.s@bmj.gv.at

4 4 If different from the Central Authority, the authority to which the request should be sent (name of the and where available): Channels of communication for the request for mutual legal assistance (directly, or other): S. Art 24. Means of communication (e.g. by post, fax, 2 ): Austrian judicial authorities accept any means of communication that are capable of producing written records and allow to establish the authenticity of the document. Language requirements: Translations of requests or supporting documents are not Document requirements and modalities/requirements for the procedure of confiscation: The request and the judgement(s) are Other requirements, if applicable: For example: a link between the proceeds and the criminal offence. In case of money laundering, what are the requirements for the predicate offence(s): A link between the proceeds and the criminal offence is According to section 165 of the Austrian Penal Code, predicate offences in case of money laundering are: - all crimes (illegal acts sentenced with more than three years of imprisonment or with life imprisonment) - all intentionally committed offences against property that are sentenced with more than one year of imprisonment - offences related to the forgery and suppression of documents and official signs; civil disobedience; 2 Please indicate if encryption or electronic signature is

5 5 criminal organisation, giving false evidence in court or before an administrative authority; forgery or suppression of evidence, corruption, - financial offences that are punished by court; - offences against intellectual property rights. If the predicate offence was committed abroad, it must also be punishable abroad in order to be estimated as a predicate offence. Procedure /possibilities to trace assets/proceeds when a (foreign) confiscation order is already given: The execution of a final foreign confiscation order is admissible if: (1.) there is a request by another State; (2.) the decision of the foreign court was taken in proceedings complying with the principles set forth in Art. 6 ECHR; (3.) double criminality; (4.) the decision was not taken in connection with a political or military offence; (5.) under Austrian law no statute of limitation applies to the execution; (6.) the person concerned by the foreign decision is not prosecuted for the same offence in Austria, has not been finally convicted or acquitted or otherwise been exemted from prosecution (ne bis in idem). The execution of a foreign decision issuing property-law orders shall only be admissible if the decision complies with the prerequisites for fines, the skimming off of an enrichment, forfeiture or seizure under Austrian law and a comparable domestic decision has not yet been issued in Austria. In addition, the execution of a decision by a foreign court imposing a fine or the skimming off of an enrichment shall only be admissible if its collection in Austria may be expected and the person concerned has been heard, to the extent that he/she can be contacted. Procedure for sharing of assets, if applicable: Confiscated assets accrue to the State, unless treaties allow the sharing of assets.

6 6 Where applicable, limitations to the possibility for the requesting state to serve judicial documents directly to the persons concerned: According to Austria s reservation to Article 21 para 2 of the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime, the modalities of serving judicial documents are only permitted insofar as provided for in another bilateral or multilateral treaty. Other particularly relevant information on special types of assistance Non Conviction Based Confiscation: A non-conviction based confiscation decision from foreign courts can be executed if: I. it is evident that the suspect cannot be punished, but the court can decide on an offence-related property order; II. the property order shall be issued against a third party, while no criminal proceedings can be conducted against the suspect. MLA regarding liability of legal persons (criminal, civil or administrative): All investigations on coercive measures provided under the Austrian Code on Penal Procedure can also be applied to legal entities if they are not specifically intended for natural persons. Other information (for example, extended confiscation, confiscation for the purpose of victims): Section 20a of the Penal Code provides: (1) Forfeiture against third persons according to section 20 para. 2 and para. 3 is excluded in so far as this person has obtained the assets unaware of the criminal act punishable by law. (2) Forfeiture is also excluded: 1. against third persons insofar as this person has acquired the assets for a consideration unaware of the criminal act punishable by law, 2. insofar as the person affected satisfies civil claims resulting from the act or has secures their satisfaction or

7 7 3. insofar as the effect of forfeiture can also be achieved by other legal measures. (3) There is no forfeiture if the assets to be declared forfeited or the chance of being able to collect them is out of proportion to the procedural efforts forfeiture or the collection would require. Pursuant to Section 367 of the Code on Penal Procedure all objects seized in criminal proceedings belonging to the victim have to be restituted as soon as the sentence has become final. The victim may also demand that the restitution is provided from forfeited proceeds. Links to national legislation, national guides on procedure: The Austrian legislation can be found at in German language. General information on the Austrian judicial system can be found at the webpage of the Federal Ministry of Justice at available also in English language.