Base de Datos de Legislación

Section 75
Effects of the confiscation

(1) Where confiscation of an object is ordered, title to the property or the right shall devolve to the state once the order becomes final if the object

1.   Belongs to the person affected by the order at that time or if the person affected by the order is entitled to the object at that time, or if the object

2.   Belongs to some other person, or if some other person is entitled to it, who has granted it for the offence or for other purposes while being aware of the circumstances of the offence.

In other cases, title to the property or the right shall devolve to the state once six months have expired following the notice as to the order of confiscation having become final, unless that person who held title to the property or held the right has previously filed his right with the enforcement authority.

(2) In all other regards, the rights of third parties to the object shall continue in force. In the cases designated in section 74b, however, the court shall order the expiry of these rights. In the cases provided for by sections 74 and 74a, the court may order the expiry of the right of a third party if that third party

1.   Has contributed at least negligently to the object being used by the offender as a means or resource, or to its being the object of the offence, or

2.   Has acquired the right to the object in a reprehensible manner while being aware of the circumstances giving rise to the confiscation.

(3) Until the devolution of title to the property or of the right, the order of confiscation or the order reserving the right to confiscate shall have the effect of a prohibition of disposal within the meaning of section 136 of the Civil Code.

(4) In the cases governed by section 111d (1), second sentence, of the Code of Criminal Procedure, section 91 of the Insolvency Statute shall have no application.

Section 76
Subsequent order to confiscate the equivalent value

Where ordering the confiscation of an object is insufficient or where such confiscation cannot be executed because one of the conditions designated in sections 73c or 74c has been met or has become known, the court may subsequently order the equivalent value to be confiscated.

Section 76a
Independent confiscation

(1) If it is impossible to prosecute or sentence a certain person for the crime, the court shall independently order the confiscation of the object or that the object be rendered unusable, provided that, in all other regards, the pre-requisites are given subject to which the measure is stipulated by law. Where confiscation is permissible, the court may independently order it subject to the pre-requisites set out in the first sentence. The confiscation shall not be ordered if there has been no request to prosecute, authorisation to prosecute, or request to prosecute by a foreign state, or if a decision with regard to said confiscation has already been taken and become final.

(2) Subject to the pre-requisites stipulated by sections 73, 73b, and 73c, it shall be permissible for the court to independently order the confiscation of the proceeds of offences and to independently confiscate the value of the proceeds of offences also in those cases in which the prosecution of the crime has become statute-barred. Subject to the pre-requisites stipulated by sections 74b and 74d, the same shall apply to instances in which the court independently orders an object to be confiscated by way of security or that it be rendered unusable, or in which it independently orders documents to be confiscated.

(3) Subsection (1) is to be applied also if the court refrains from meting out punishment or if the proceedings are withdrawn based on a regulation that allows this to be done, as the public prosecutor’s office or the court may decide at its discretion, or as they may decide by mutual consent.

(4) An object originating from an unlawful act, which has been seized in proceedings brought for the suspicion of a crime having been committed that is listed in the third sentence hereof, is to be confiscated independently also in those cases in which it is impossible to prosecute or sentence for the crime the person affected by the confiscation. Where the confiscation of an object is ordered, title to the property or the right shall devolve to the state once the order becomes final; section 75 (3) shall apply mutatis mutandis. Crimes within the meaning of the first sentence are the following:

1.   Under the present Code:

a)   Preparation of a serious violent offence endangering the state pursuant to section 89a and financing of terrorism pursuant to section 89c subsections (1) to (4),

b)   Forming criminal organisations pursuant to section 129 (1) and forming terrorist organisations pursuant to section 129a subsections (1), (2), (4), (5), in each case also read in conjunction with section 129b (1),

c)   Controlling prostitution pursuant to section 181a (1), also read in conjunction with subsection (3),

d)   Distribution, acquisition, and possession of child pornography in the cases governed by section 184b (2),

e)   Human trafficking, forced prostitution, and forced labour professionally organised as a commercial undertaking by a crime gang pursuant to sections 232 to 232b as well as human trafficking organised by a crime gang for the purpose of work exploitation and exploitation while taking advantage of an unlawful deprivation of liberty pursuant to sections 233 and 233a,

f)    Money laundering; hiding unlawfully obtained financial benefits pursuant to section 261 subsections 1, 2 and 4,

2.   Under the Fiscal Code:

a)   Tax evasion subject to the pre-requisites set out in section 370 (3) number 5,

b)   Professional, violent or organised smuggling pursuant to section 373,

c)   Receiving, holding or selling goods obtained by tax evasion in the case of section 374 (2),

3.   Under the Asylum Act:

a)   Incitement to submit fraudulent applications for asylum pursuant to section 84 (3),

b)   Commercial and organised incitement to submit fraudulent applications for asylum pursuant to section 84a,

4.   Under the Residence Act:

a)   Smuggling of foreigners into the federal territory pursuant to section 96 (2),

b)   Smuggling of foreigners into the federal territory resulting in death as well as smuggling for gain and as organised gangs pursuant to section 97,

5.   Under the Foreign Trade and Payments Act:

Crimes intentionally committed as set out in sections 17 and 18,

6.   Under the Narcotics Act:

a)   Crimes as defined by a regulation included by reference in section 29 (3), second sentence, number 1, subject to the pre-requisites set out therein,

b)   Crimes pursuant to sections 29a, 30 (1) numbers 1, 2 and 4 as well as pursuant to sections 30a and 30b,

7.   Under the Act on the Control of Weapons of War:

a)   Crimes pursuant to section 19 subsections (1) to (3) and section 20 subsections (1) and (2), as well as section 20a subsections (1) to (3), in each case also read in conjunction with section 21,

b)   Crimes pursuant to section 22a subsections (1) to (3),

8.   Under the Weapons Act:

a)   Crimes pursuant to section 51 subsections (1) to (3),

b)   Crimes pursuant to section 52 (1) numbers 1 and 2 letters c and d as well as subsections (5) and (6).

Section 76b
Limitation period for the confiscation of proceeds of offences and of the value of the proceeds of offences

(1) The expanded confiscation of the proceeds of the offence or of the value of the proceeds of the offence, and their independent confiscation, pursuant to sections 73a and 76a shall be subject to the statute of limitations for a period of thirty years. The limitation period shall commence to run as soon as the unlawful act has been completed by which or for which the principal or secondary participant or another person within the meaning of section 73b has obtained something. Sections 78b and 78c shall apply mutatis mutandis.

(2) In the cases governed by section 78 (2) hereof and in those governed by section 5 of the Code of Crimes against International Law, the expanded confiscation and the independent confiscation of the proceeds of the offence or of the value of the proceeds of the offence pursuant to sections 73a and 76a are not subject to the statute of limitations.