Forfeiture and confiscation in Austria: sections 19a and 20 StGB

Confiscation under section 19a StGB concerns items owned by the offender that were either used to commit the offence or produced through it. Typical examples are vehicles used in smuggling or tools used in a burglary.

The measure strictly requires that the item is owned by the offender. Ownership must therefore be clarified carefully. If the item belongs to a third party, confiscation does not apply; only forfeiture or another measure may be considered.

Confiscation must be expressly pronounced in the judgment. It is also subject to the principle of proportionality. From a legal perspective the argument is worthwhile where the item has a value disproportionate to the offence or the sentence.

Forfeiture under section 20 StGB covers assets obtained for or through the commission of an offence punishable by law. The aim is to skim off the economic benefit. If the benefit is no longer tangible, the court orders forfeiture of a sum of money corresponding to the value (value substitute forfeiture).

The basis of calculation is often disputed. Gross or net calculation, consideration of expenses, several participants and the question of the actual inflow of the benefit can lead to substantial differences. From a legal perspective the comprehensible calculation is the central point of attack.

Extended forfeiture under section 20b StGB allows the skimming of assets arising from further unlawful acts, in particular in the field of organised crime. The measure is more narrowly defined but has considerable effect in practice.

Forfeiture can be directed not only against the offender but also against third parties that have received the financial benefit. This often affects companies into whose assets benefits from an offence have flowed. Family members can also be affected if there have been transfers without consideration.

From a legal perspective timely participation of the third party in the proceedings is essential. File access, hearing and applications for evidence are only possible if the formal participation is secured. If the participant status is overlooked, an important defence level is lost.

In substance it matters whether the third party acquired the benefit without consideration or with knowledge of the offence. Bona fide acquirers are protected where they did not know of the offence and provided market-standard consideration for the benefit.

Already in the investigative phase, assets can be secured with a view to later forfeiture. Seizure and judicial confiscation then serve to preserve the availability of the assets until the judgment decides on forfeiture.

From a legal perspective the specificity of the securing measure, the scope as against third parties and the proportionality must be examined. A complaint to the higher regional court is available, the deadlines are tight.

If the securing purpose ceases or a lesser measure is sufficient, lifting must be requested. Continuous review prevents assets from being tied up longer than necessary.