BUNDESKRIMINALAMT, 1090 WIEN, JOSEF-HOLAUBEK-PLATZ 1; TEL.: +43 - (0)1 - 24836 - 0 Asset forfeiture...

BUNDESKRIMINALAMT, 1090 WIEN, JOSEF-HOLAUBEK-PLATZ 1; TEL.: +43 - (0)1 - 24836 - 0

Asset forfeiture in concern with

environmental crime

Hannes Sedlak, ARO2009, Nov. 12


Asset forfeiture in concern with environmental crime

Someone gets rich not only by enormous income

but more by low expenses

Making business is not a crime

Making profit is not a crime either

But making irregular profit can be a crime



In economies lots of different rules and regulations, laws and administrative instructions,

take care that business goes on

Everybody, who will not follow the rules, shall be punished,

will he be a single actor or a manager of a big firm

Even legal entities can be subject of punishment (VbVG 2006)



Austrian Penal code says

If someone commits a crime

then he shall be punished

If he gained illegal profits by committing a crime

Then he shall be sentenced to pay a sum of money equalling the worth of the illegal

enrichment.



Asset forfeiture and confiscation

(Art. 20 ff penal code)

are possible only in criminal procedures,

Not in an administrative procedure

we can confiscate any proceeds the illegally enriched person owns that he would not possess

without having committed the crime, even interests


The Austrian Penal Code follows

international and European Regulations

European Council Convention 141 defines in Article 1

"proceeds" as any economic advantage from criminal offences. It may consist of any property as defined in this article;

"property" includes property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title to, or interest in such property;

"confiscation" means a penalty or a measure, ordered by a court following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property;



Following this definition of „proceeds“

the Austrian Penal Code follows the net principle:

We can confiscate only the real benefit,

the economic advantage, not more

To take the advantage is a reversal

of illegal enrichment, not a punishment

but confiscation makes a punishment

more efficient !!


Correct behavior in environmental matters can cause costs

It would be cheaper to reduce or even better to avoid these costs / expenditures

Throw the waste into the woods,

Dig it in your garden,

Pour it into the river

blow it through the chimney

ship it abroad And so on


To estimate the economic advantage, the illegal benefit, the illicit enrichment,

it is necessary to state the costs for alternative well-behavior


Netprinciple – gains/earnings are:

For example in drug dealing:

Balance between the price of buying and selling

For example in environmental crimes:

Balance between costs of illegal behavior (dig the waste, no filtersystem installed and thereby saving of costs / expenditures)

and legitimate alternativ behavior


The Austrian Penal Code lists following proprietary measures:

Confiscation of (unjustified) enrichment (art.20)- as a measure sui generis under the

right of property to reverse illegal enrichment

Forfeiture (art. 20b) - as secondary penalty to take away certain properties from criminals

Withdrawal (art. 26) - as preventive measure

to withdraw certain property from circulation like drugs, false money, child pornography


Penal Code, Article 20 :

(1) Any person who

1) has gained "economic benefits" as a

result

of having committed an indictable offence,

or 2) has received any "economic benefits" as

reward for committing an indictable

offence,

shall be sentenced to making a payment

equalling the amount of the proceeds from

crime.


A sentence of "confiscation" is to be pronounced against

the offender, i.e. the individual who committed the criminal offence (art. 20, paragraph 1),

any third party, directly profiting from the enrichment (art. 20, para 4), and

the legal successor of the individual who enriched himself, provided the illegally obtained Property still existed at the time of the subrogation (art. 20, para. 5).



Who can be Third party ?

Legal entity, company, enterprise

managed by one, two or more managers who act in behalf of the company

Real persons/ managers act, the success will be evident in the company


Unjustified enrichment is subject to confiscation

when it

• is gained as a result of

an indictable offence, or

• is received as reward for

an indictable offence, or

• is assumpted to be derived from criminal offences

and their legal origin cannot be made plausible,


but only in cases when these assets are

gained by a perpetrator who has

repeatedly or continuously committed heavy crimes

and gained "economic benefits" through or for

continued or repeated commission of these crimes,

or is a member of a criminal organisation or a terrorist

association, giving rise to the assumption that the

assets are derived from criminal offences


Article 20

(para 1) …

If the extent of the criminal proceeds cannot be

determined or only at disproportionate expenses,

the court has discretion as to determine the

amount to be confiscated…

(para 6) Several persons or entities having gained

enrichment shall be sentenced depending

on their share in the enrichment.

If the respective share cannot be established,

the court has discretion to determine the same.


Article 20a

1. Confiscation shall not be enforced to the extent as the individual concerned

• uses the illegal proceeds to satisfy claims under civil law,

• or has entered a binding agreement to do so, or has been or is simultaneously sentenced to do so, (Art. 366 CCP - StPO)

• or if the proceeds have been removed through other legal measures.


ForfeitureArticle 20b – Penal Code

Subject to forfeiture would be

assets in possession of a criminal or terrorist organisation, (or collected for the means of terrorism)

which typically cannot be attributed to a single crime committed by one suspect;

and

all assets detected in Austria

originating from a crime committed abroad

which do not fall under the jurisdiction of Austrian courts.


Crime doesn‘t pay

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