Confiscation
Confiscation
Confiscation under § 19a StGB is a measure of Austrian criminal law, whereby objects connected to an intentional criminal offense are permanently seized. It is not a punishment, but serves to secure the legal order and protect the public from further legal infringements.
Objects that were used for the commission of an intentional act, intended for its commission, or produced by the act can be confiscated. Crucially, they must be owned by the perpetrator at the time of the first-instance decision.
Legal Basis
§ 19a para 1 StGB stipulates that instruments, means, or products of a crime can be confiscated. Para 1a extends this regulation to so-called substitute values, i.e., assets that have replaced the original object, such as proceeds from a sale.
According to para 2, the court must examine whether the confiscation is proportionate. The court will not order confiscation if it is disproportionate to the significance of the act or the personal culpability.
Systematically, confiscation in the StGB precedes forfeiture and seizure. It thus forms the first part of criminal asset recovery.
Requirements
Confiscation may only be ordered if the following conditions are met:
- Intentional Act: Negligent conduct is not sufficient.
- Connection to the Act: The object was used for the commission of the act, intended for it, or produced by the act.
- Ownership by the Perpetrator: Only objects owned by the perpetrator at the time of the decision are subject to confiscation.
- Proportionality: The measure must not be excessive and must be proportionate to the act.
If one of these criteria is missing, confiscation is inadmissible.
Proportionality
Confiscation must be refrained from if it is grossly disproportionate to the severity of the act or the culpability of the perpetrator.
Courts must therefore always examine whether the intervention is justified or whether it would constitute undue hardship.
In the case of minor offenses or high material value, the measure may be waived.
Distinction from Forfeiture and Seizure
- Forfeiture: concerns assets derived from a criminal offense.
- Confiscation: is directed against the object itself – instruments or products of a crime.
- Seizure: concerns objects whose possession or use is prohibited independently of a specific act (e.g., prohibited weapons or narcotics).
Thus, confiscation is primarily a security measure, not a punishment or profit skimming.
Practical Implications
Confiscation permanently deprives the perpetrator of assets. This can have significant economic consequences in addition to the actual penalty.
Affected are often vehicles in traffic offenses, technical devices in cybercrime, or cash and valuables in property and asset offenses.
Upon the judgment becoming legally binding, the court transfers ownership of the confiscated objects to the state, which then utilizes, renders them unusable, or destroys them.
Your Benefits with Legal Assistance
A criminal proceeding is a significant burden for those affected. Serious consequences threaten right from the start – from coercive measures such as house searches or arrests, to entries in the criminal register, to custodial or monetary penalties. Errors in the initial phase, such as thoughtless statements or insufficient preservation of evidence, often cannot be corrected later. Economic risks such as claims for damages or procedural costs can also be substantial.
Specialized criminal defense ensures that your rights are protected from the outset. It provides security in dealing with the police and public prosecutor’s office, protects against self-incrimination, and creates the basis for a clear defense strategy.
Our law firm:
- examines whether and to what extent the accusation is legally sustainable,
- accompanies you through investigation proceedings and main hearing,
- ensures legally sound applications, statements, and procedural steps,
- assists in defending against or settling civil law claims,
- protects your rights and interests vis-à-vis the court, public prosecutor’s office, and victims.
Peter HarlanderHarlander & Partner Rechtsanwälte „Machen Sie keine inhaltlichen Aussagen ohne vorherige Rücksprache mit Ihrer Verteidigung. Sie haben jederzeit das Recht zu schweigen und eine Anwältin oder einen Anwalt beizuziehen. Dieses Recht gilt bereits bei der ersten polizeilichen Kontaktaufnahme. Erst nach Akteneinsicht lässt sich klären, ob und welche Einlassung sinnvoll ist.“
