1. knoetzl.com

2. PROCEEDINGS TO LOCATE AND ATTACH
CRIMINAL
PROCEEDINGS TO LOCATE AND ATTACH
ASSETS IN AUSTRIA
Bettina Knoetzl

3. TypicaL “Austrian“ Scenario

4. Two PROCEDURAL PATHS
CIVIL or CRIMINAL
PROCEEDINGS

5. 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

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

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

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

9. 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

10. 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

11. 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.)

12. 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

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

14. BANK ACCOUNT REGISTER

15. 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

16. Information on bank accounts
And Bank transactions

17. 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.

18. 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.

19. QUESTIONS?
Bettina Knoetzl Herrengasse 1 | 1010 Wien T: | M: E: knoetzl.com

20. THANK YOU FOR YOUR ATTENTION!
Bettina Knoetzl Herrengasse 1 | 1010 Wien T: | M: E: knoetzl.com
THANK YOU FOR YOUR ATTENTION!