Forfeiture and Extended Forfeiture

Forfeiture and Extended Forfeiture

Forfeiture and extended forfeiture under §§ 20 to 20c of the Criminal Code are measures for the confiscation of assets in Austrian criminal law. They aim to ensure that perpetrators do not retain any economic benefits from a criminal offense.

According to § 20 of the Criminal Code, the court declares assets forfeited if they originated from a criminal act or were used to commit it. § 20a of the Criminal Code stipulates that forfeiture shall not apply if third parties have acquired the assets in good faith or if the perpetrator has already compensated for the damage.

§ 20b of the Criminal Code covers assets whose lawful origin the person concerned does not credibly demonstrate, particularly in cases of organized or terrorist crime. § 20c of the Criminal Code protects uninvolved third parties by not applying extended forfeiture to their assets.

The aim of these provisions is to remove illegally acquired assets from circulation and to ensure that criminal behavior is not economically worthwhile.

Forfeiture under §§ 20 et seq. of the Criminal Code authorizes the court to confiscate assets that a person has obtained through a criminal offense or used to commit it. Extended forfeiture also concerns assets from criminal sources, even if no direct proof of the offense is possible.

Forfeiture

According to § 20 of the Criminal Code, the court declares assets forfeited if someone has used them to commit a criminal offense or has obtained them through it. In doing so, it deprives the perpetrator of the unlawful economic advantage and restores the rule of law.

All pecuniary advantages can be subject to forfeiture – such as cash, claims, tangible assets or profits from the offense. Indirect proceeds (interest, sales revenues) and substitute values (e.g., newly acquired items) are also included.

If the assets in question cannot be found or are confiscated, the court orders an amount of money that corresponds to the value of what was obtained. If the exact amount cannot be determined with reasonable effort, the court may estimate the extent at its discretion.

Forfeiture is examined and ordered ex officio as soon as the conditions are met. It differs from confiscation, which concerns instruments of the offense, and from seizure, which targets prohibited items.

Omission of Forfeiture

§ 20a of the Criminal Code protects uninvolved third parties and regulates when forfeiture is not ordered.

Forfeiture is omitted if:

• the acquirer has obtained the assets in good faith and without knowledge of the criminal offense,
• the perpetrator has already compensated for the damage or provided corresponding security,
• the purpose of the forfeiture has already been achieved by other measures (e.g., compensation or seizure),
• the effort to collect is disproportionate to the value of the assets.

These exceptions prevent undue hardship and ensure that only illegally obtained advantages are withdrawn. In practice, this means that if the perpetrator compensates for the damage or the asset has since been lawfully acquired, no forfeiture will be ordered.

Extended Forfeiture

Extended forfeiture under § 20b of the Criminal Code authorizes the court to confiscate assets that are not directly related to the adjudicated criminal offense, but whose lawful origin the person concerned does not credibly demonstrate.

It particularly concerns cases of organized or terrorist crime (§§ 278a–278d of the Criminal Code) as well as certain serious offenses such as money laundering, human trafficking, corruption or drug trafficking.

The court may order extended forfeiture if assets:

• are under the control of a criminal organization or terrorist association,
• have been provided or collected for the financing of terrorism, or
• were obtained in temporal connection with serious criminal offenses and their lawful origin cannot be proven.

The judicial conviction can be based in particular on a striking contradiction between the asset situation and the declared income of the person concerned.

Sebastian Riedlmair
Harlander & Partner Attorneys „Der erweiterte Verfall greift, wenn Vermögen offensichtlich nicht aus legalen Quellen stammt. Er schützt die Rechtsordnung vor ungerechtfertigter Bereicherung“

Extended forfeiture also applies if no criminal judgment is issued against the person concerned, for example because he is a fugitive or has died. This prevents criminal assets from being retained solely because of procedural obstacles.

Omission of Extended Forfeiture

§ 20c of the Criminal Code limits extended forfeiture in favor of uninvolved persons.

The court does not order extended forfeiture if third parties have legal claims to the assets concerned who are not involved in the criminal offense or a criminal organization.
In addition, the protection mechanisms of § 20a of the Criminal Code apply mutatis mutandis.

This ensures that the state only confiscates unlawful assets without interfering with the legitimate property rights of uninvolved parties.

Proportionality

Both simple and extended forfeiture are subject to the principle of proportionality.
The court may not order the intervention if it is disproportionate to the significance of the offense or the culpability of the perpetrator.
This is to ensure that the measure remains objectively justified and does not lead to excessive interventions or double burdens.

Practical Implications

With the force of law of the judgment, the assets declared forfeited are transferred to the state. These can be utilized, rendered unusable or destroyed.
In practice, forfeiture often leads to the loss of considerable assets – especially in cases of economic or corruption offenses.

Extended forfeiture also makes it possible to confiscate unclear or suspicious increases in assets if their legal origin cannot be credibly demonstrated.
Both instruments affect perpetrators economically and also serve as a deterrent: Anyone who cannot derive a financial advantage from their offense has less incentive to repeat it.

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 Harlander
Harlander & 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.“

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