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Non-conviction-based confiscation in Austria and Switzerland – Lessons to be learned from an EU Member State and a non-EU Member State
Fri, September 5, 8:00 to 9:15am, Deree | Classrooms, DC 700Abstract
Due to the Vienna terrorist attack on November 2, 2020, the Austrian legislator adopted new anti-terrorism legislation by which, inter alia, in § 20b(2a), a new type of non-conviction-based-confiscation (“NCBC” for short) was introduced into the Austrian Criminal Code. The legislator had been inspired by the German NCBC-provision of § 76a(4) Criminal Code. He intended to close a confiscation gap in the field of organized crime, terrorism, and corruption by allowing confiscation when the court is satisfied that the assets have a criminal origin, even if the court is unsure from which specific criminal offence they stem. The new Austrian provision corresponds to the international trend of expanding legal confiscation tools, especially by introducing a great variety of new NCBC-mechanisms. This paper analyzes the new Austrian NCBC-mechanism, presenting practical experience and empirical data. Furthermore, it examines whether Austrian confiscation laws already meet the requirements of article 16 of the new EU Directive 2024/1260, which provides for confiscation of unexplained wealth linked to criminal conduct; or if legal change is necessary in order to transpose article 16 into Austrian law.
As Switzerland is not part of the EU, its confiscation legislation is not shaped by EU legal standards. Still, the Swiss government recently stressed its interest in current developments in the EU confiscation framework, especially with regard to the new Directive 2024/1260. Currently, the Swiss Criminal Code does not provide for confiscation instruments that are comparable to the EU NCBC-mechanisms. However, in recent years, the Swiss prosecution authorities have developed innovative ways to interpret the existing confiscation provisions in order to allow confiscation without conviction in certain cases where the criminal origin of the seized property is sufficiently proven, but it is not possible to show the specific criminal offence from which it has been derived.