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PROCEEDINGS TO LOCATE AND ATTACH CRIMINAL PROCEEDINGS TO LOCATE AND ATTACH ASSETS IN AUSTRIA Bettina Knoetzl 24.05.2017

TypicaL “Austrian“ Scenario

Two PROCEDURAL PATHS CIVIL or CRIMINAL PROCEEDINGS

CIVIL PROCEEDINGS Interim measures, like freeze order and Injunction, to be granted by civil court Some relevant charactaristics (Reduced) Burden of Proof: Dissipation of assets to be shown to the court Significant court fees Cost risk (“Loser pays system“) Possible security deposit Civil liability, independent of negligence

Filing of „criminal complaint“ „joinder“ as „injured party“ criminal proceedings Filing of „criminal complaint“ „joinder“ as „injured party“ Requesting interim measures

Filing of “ criminal complaint“ “ joinder“ as “injured party“ criminal proceedings Filing of “ criminal complaint“ “ joinder“ as “injured party“ Requesting interim measures

Likely criminal offenSes Fraud Embezzlement Enforcement-thwarting Bankruptcy offenses Tax evasion Money laundering

Protective measures Interim Seizure (“Sicherstellung“) - Sec 110 Austrian Criminal Code Seizure (“Beschlagnahme“) – Sec 115 Austrian Criminal Code Accounts Register Information - Sec 116 (1) Austrian Criminal Code NEW! Information About Bank Accounts and Bank Transactions Sec 116 (2) Austrian Criminal Code

SeIZURE – FREEZE ORDER Freeze Order concerning property and/or bank accounts (by third party order) Real estate (not for interim seizure) Order by Public Prosecutor with prior court approval Interim: No court approval necessary Standard requirements, such as: necessity and adequacy Specific Requirements: For reasons of proof (to compile evidence), or To secure civil claims - rather new! - or To secure pecuniary orders, such as forfeiture

Recent changes re bank accounts Implemented: October 2016 Central account register kept at the Ministry of Finance The simplified inspection of information on bank accounts shall facilitate and accelerate the procedures regarding white collar crimes and the procedures regarding judicial assistance. (source: ErläutRV 1058 BlgNR 25. GP 17.)

NEW REGULATIONS For bank accounts Sec 116 Austrian Criminal Code Records contain all checkings and savings accounts as well as security accounts of natural and legal persons, One flaw: effective date only as of May 1, 2015 Requirements: Criminal offence requiring intent Not for „smaller“ criminal offences

NEW REGULATIONS For bank accounts Possible measures: Information from the account register (“outer data”) Information on bank accounts and bank transactions (“inner data”)

BANK ACCOUNT REGISTER

BANK ACCOUNT REGISTER Order by the public prosecutor only No prior court approval needed Access to outer account data name, address, and date of birth of account holder; Name of bank, account number, opening and closing date and authorized signatories

Information on bank accounts And Bank transactions

Information on bank accounts And bank TraNsactions Ordered by the public prosecutor after approval by the court. plus certain specific requirements (see Sec 116 (2) Z 1-3) Access to the “inner“ account data and all documents concerning bank transactions, such as: - Amount - Movements on the account No possibility to revert to bank secrecy Preconditions: Property, documents or other documents concerning business relations resp transactions can be secured (in view of civil claims) or Property or other assets can be secured (by third party order) or A transaction that is associated with a crime, was processed via a business relation.

cONCLUSIONS Low costs Feasable tools, if suspicion of criminal behavior of some significance Potential to gain swift understanding of success of civil freeze attempts Full dependence on public prosecutor (Resources problem) Difficulties in case there is more than one creditor, in case of acquittal To be avoided: in combination with civil proceedings.

QUESTIONS? Bettina Knoetzl Herrengasse 1 | 1010 Wien T: + 43 1 34 34 000 200 | M: + 43 676 844 133 200 E: bettina.knoetzl@knoetzl.com knoetzl.com

THANK YOU FOR YOUR ATTENTION! Bettina Knoetzl Herrengasse 1 | 1010 Wien T: + 43 1 34 34 000 200 | M: + 43 676 844 133 200 E: bettina.knoetzl@knoetzl.com knoetzl.com THANK YOU FOR YOUR ATTENTION!