Asset forfeiture in concern with environmental crime Hannes Sedlak, ARO 2009, Nov. 12

1. Asset forfeiture in concern with environmental crime Hannes Sedlak, ARO 2009, Nov. 12

2. Someone gets rich not only by enormous income but more by low expenses Making business is not a crime Making profit is not a crime either But making irregular profit can be a crime Asset forfeiture in concern with environmental crime

3. In economies lots of different rules and regulations, laws and administrative instructions, take care that business goes on Everybody, who will not follow the rules, shall be punished, will he be a single actor or a manager of a big firm Even legal entities can be subject of punishment (VbVG 2006) Asset forfeiture in concern with environmental crime

4. Austrian Penal code says If someone commits a crime  then he shall be punished If he gained illegal profits by committing a crime  Then he shall be sentenced to pay a sum of money equalling the worth of the illegal enrichment. Asset forfeiture in concern with environmental crime

5. Asset forfeiture and confiscation (Art. 20 ff penal code) are possible only in criminal procedures, Not in an administrative procedure we can confiscate any proceeds the illegally enriched person owns that he would not possess without having committed the crime, even interests Asset forfeiture in concern with environmental crime

6. The Austrian Penal Code follows international and European Regulations European Council Convention 141 defines in Article 1 "proceeds" as any economic advantage from criminal offences. It may consist of any property as defined in this article; "property" includes property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title to, or interest in such property; "confiscation" means a penalty or a measure, ordered by a court following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property;

7. Following this definition of „proceeds“ the Austrian Penal Code follows the net principle: We can confiscate only the real benefit, the economic advantage, not more To take the advantage is a reversal of illegal enrichment, not a punishment but confiscation makes a punishment more efficient !! Asset forfeiture in concern with environmental crime

8. Correct behavior in environmental matters can cause costs  It would be cheaper to reduce or even better to avoid these costs / expenditures Throw the waste into the woods, Dig it in your garden, Pour it into the river blow it through the chimney ship it abroad And so on

9. To estimate the economic advantage, the illegal benefit, the illicit enrichment,  it is necessary to state the costs for alternative well-behavior

10. Netprinciple – gains/earnings are: For example in drug dealing: Balance between the price of buying and selling For example in environmental crimes: Balance between costs of illegal behavior (dig the waste, no filtersystem installed and thereby saving of costs / expenditures) and legitimate alternativ behavior

11. Confiscation of (unjustified) enrichment (art.20)- as a measure sui generis under the right of property to reverse illegal enrichment Forfeiture (art. 20b) - as secondary penalty to take away certain properties from criminals Withdrawal (art. 26) - as preventive measure to withdraw certain property from circulation like drugs, false money, child pornography The Austrian Penal Codelists following proprietary measures:

12. Penal Code, Article 20 : • (1) Any person who • 1) has gained "economic benefits" as a result • of having committed an indictable offence, • or 2) has received any "economic benefits" as • reward for committing an indictable offence, • shall be sentenced to making a payment • equalling the amount of the proceeds from crime.

13. the offender, i.e. the individual who committed the criminal offence (art. 20, paragraph 1), any third party, directly profiting from the enrichment (art. 20, para 4), and the legal successor of the individual who enriched himself, provided the illegally obtained Property still existed at the time of the subrogation (art. 20, para. 5). A sentence of "confiscation" is to be pronounced against

14. Who can be Third party ? Legal entity, company, enterprise managed by one, two or more managers who act in behalf of the company Real persons/ managers act, the success will be evident in the company Asset forfeiture in concern with environmental crime

15. Unjustified enrichment is subject to confiscation • when it • is gained as a result of • an indictable offence, or • is received as reward for • an indictable offence, or • is assumpted to be derived from criminal offences • and their legal origin cannot be made plausible,

16. but only in cases when these assets are • gained by a perpetrator who has • repeatedly or continuously committed heavy crimes and gained "economic benefits" through or for continued or repeated commission of these crimes, • or is a member of a criminal organisation or a terrorist association, giving rise to the assumption that the assets are derived from criminal offences

17. Article 20 • (para 1) … • If the extent of the criminal proceeds cannot be determined or only at disproportionate expenses, • the court has discretion as to determine the • amount to be confiscated… • (para 6) Several persons or entities having gained enrichment shall be sentenced depending • on their share in the enrichment. • If the respective share cannot be established, • the court has discretion to determine the same.

18. Article 20a • Confiscation shall not be enforced to the extent • as the individual concerned • uses the illegal proceeds to satisfy claims • under civil law, • or has entered a binding agreement to do so, • or has been or is simultaneously • sentenced to do so, (Art. 366 CCP - StPO) • or if the proceeds have been removed • through other legal measures.

19. Subject to forfeiture would be assets in possession of a criminal or terrorist organisation, (or collected for the means of terrorism) which typically cannot be attributed to a single crime committed by one suspect; and all assets detected in Austria originating from a crime committed abroad which do not fall under the jurisdiction of Austrian courts. ForfeitureArticle 20b – Penal Code

20. abschoepfung@bmi.gv.at Hannes.sedlak@bmi.gv.at Crime doesn‘t pay