European Public Prosecutor’s Office Implementation Act-2021

FEDERAL LEGISLATION FOR THE REPUBLIC OF AUSTRIA

Born in 2021

Issued May 28, 2021

part One

94th Federal Law:

EU Criminal Law Amendment Act 2021 – StrEU-AG 2021

(NR: GP XXVII RV 808 AB 859 p. 107. BR: AB 10638 p. 926.)

94. Federal law with which a federal law for the implementation of the European Public Prosecutor’s Office (EUStA-DG) is enacted and with which the Judges and Public Prosecutor’s Service Act, the Federal Act on Judicial Cooperation in Criminal Matters with the Member States of the European Union, the Extradition and Legal Assistance Act, which Financial Criminal Law and the Criminal Code are changed (EU Criminal Law Amendment Act 2021 – StrEU-AG 2021)

The National Council decided:

Table of Contents

article 1

Federal Act for the Implementation of the European Public Prosecutor’s Office (EUStA-DG)

Article 2

Amendment of the Judiciary and Public Prosecutor’s Service Act

Article 3

Change of the EU-JZG

Article 4

Amendment to the Extradition and Legal Assistance Act

Article 5

Amendment of the Financial Criminal Law

Article 6

Amendment of the Criminal Code

Article 7

Come into effect

article 1
Federal Act for the Implementation of the European Public Prosecutor’s Office (European Public Prosecutor’s Office Implementation Act – EUStA-DG)

1st section
General provisions and criminal proceedings of the European Public Prosecutor’s Office

Principles

§ 1.

 (1) This federal law serves to implement the EUStA-VO (§ 2 Z 2).

(2) When performing its duties, the European Public Prosecutor’s Office must, unless otherwise stated in the EPPO or the provisions of this Federal Act, proceed in accordance with the general provisions on criminal proceedings and in the cases of Art. 30 Paragraphs 2 and 3 EUStA-VO to observe the prerequisites and conditions for the ordering and implementation of investigative measures and for taking evidence according to national regulations.

Definitions

§ 2.

 For the purposes of this federal law:

1.

“EPPO”: the European Public Prosecutor’s Office;

2.

“EUStA-VO”: Regulation (EU) 2017/1939 for the implementation of enhanced cooperation to establish the European Public Prosecutor’s Office (EPStA), OJ No. L 283 of 31.10.2017 p. 1;

3rd

“Member State”: a state that is a member of the European Union;

4th

“Participating Member State”: a Member State participating in the establishment of the EPPO;

5.

“Non-participating Member State”: a Member State that does not participate in the establishment of the EPPO;

6th

“Third country”: a country that is not a member state.

scope of application

§ 3.

 The provisions of this federal act are to be applied in proceedings for the investigation of criminal offenses for which the EPPO is responsible according to Art. 22, 23 and 120 para. 2 EPPO Regulation and can exercise its competence according to Art. 25 para. 1 to 4 of this Ordinance .

Performing tasks in the federal territory

§ 4.

 (1) The EPPO is responsible for the entire federal territory:

1.

leading the investigation,

2.

the termination of the investigation according to Art. 39 and 40 EPPO-VO,

3rd

bringing the indictment and representing it in the main proceedings,

4th

representation in proceedings before the Higher Regional Court and

5.

representation in proceedings for reopening and reinstatement.

(2) The EPPO performs the tasks assigned to it in the EPPO Regulation through one of the European Delegated Public Prosecutors appointed for the Republic of Austria. The European Public Prosecutor appointed for the Republic of Austria can also perform the tasks in the exceptional cases mentioned in Art. 28 (4) of the EUStA-VO.

privacy

§ 5.

Sections 74 and 75 of the Code of Criminal Procedure (StPO), Federal Law Gazette No. 631/1975, are only applicable to the processing of personal data by the EPPO in the event that the filing is based on national legal provisions or the EPPO processes federal data uses. To this extent, however, the EPPO is not subject to supervision by the data protection authority (Section 31 Data Protection Act – DSG, Federal Law Gazette I No. 165/1999).

Transfer of jurisdiction

§ 6.

 In cases of Art. 25 Para. 4 EPPO Regulation, the competent public prosecutor’s office has to give consent to the EPPO to prosecute criminal offenses if

1.

the EPPO is in a better position to conduct the investigation and clear up the criminal offenses, and

2.

In individual cases, the victim’s interests worthy of protection do not predominate

Conflict of jurisdiction

§ 7.

The Supreme Court has to decide on conflicts of jurisdiction between a public prosecutor’s office and the EPPO (Art. 25 (6) EPPO) by means of a triple senate (Section 7 of the Federal Act of June 19, 1968 on the Supreme Court, Federal Law Gazette No. 328/1968) . The simple senate has to make the decision at the request of only one member of the triple senate.

Notification requirement

§ 8th.

 If an authority or a public agency becomes aware of the suspicion of a criminal offense falling under the jurisdiction of the EPPO according to § 3, which affects its legal sphere of activity, it is obliged to report it to the EPPO.

Beginning of criminal proceedings

§ 9.

The criminal proceedings must be initiated by the EPPO (Art. 26, Paragraph 1 EPPO). The initiation by the criminal police or financial criminal authority is permissible if measures are to be taken that cannot be delayed.

Jurisdiction for preliminary investigations of the EPPO

§ 10.

In preliminary proceedings of the EPPO, judicial decisions are incumbent on the regional court, at whose seat the public prosecutor is located, which are responsible for criminal proceedings according to §§ 20a, 25 to 27 StPO, according to §§ 197 and 198 of the Financial Criminal Law (FinStrG), Federal Law Gazette No. 21/1959, according to § 15 of the Association Responsibility Act (VbVG), Federal Law Gazette I No. 151/2005, or according to § 29 of the Youth Courts Act 1988 (JGG), Federal Law Gazette No. 599/1988. Section 36 (2) and Section 38 of the Code of Criminal Procedure apply.

Court jurisdiction for cross-border investigations according to Art. 31 EPPO-VO

§ 11.

 (1) Notwithstanding Section 10, there is no domestic jurisdiction if a measure is to be carried out in another participating Member State and under whose law a court authorization or a court order to carry out the measure is to be obtained (Article 31 Paragraph 3 Subparagraph 1 EUStA-VO).

(2) If, in the case of cross-border investigations by the EPPO, a measure is to be carried out in the federal territory, the judicial decision or approval according to Art. 31 para. 3 subpara. 1 first case EUStA-VO the regional court at whose seat the public prosecutor is located, which according to § 46 Paragraph 1 or § 55c of the Federal Act on Judicial Cooperation in Criminal Matters with the Member States of the European Union (EU-JZG), Federal Law Gazette I No. 36/2004, would be responsible.

Administrative assistance

§ 12.

 In accordance with Section 76 (1) to (2a) of the Code of Criminal Procedure, the EPPO can directly claim the support of all federal, state and local authorities and other corporations and institutions under public law established by law.

Legal protection officer

§ 13.

 (1) In the investigation procedure, the EPPO does not have to ask the legal protection officer (Section 47a StPO) to authorize the application under Section 147 (2) StPO.

(2) In no case shall the legal protection officer have the right to submit an application to continue the investigation.

Suspension of the investigation

§ 14.

 (1) The reasons for recruitment listed in Sections 190 to 192 of the Code of Criminal Procedure and in Section 18 VbVG do not apply to the EPPO’s recruitment decisions.

(2) In an agreement on the termination, the victim must also be informed of the conditions under which an action for annulment pursuant to Art. 263 (4) of the Treaty on the Functioning of the European Union (TFEU), OJ C 83 of 30.3.2010 p. 1, can be brought before the ECJ. The provisions on the application for continuation according to Sections 195 f of the Code of Criminal Procedure apply mutatis mutandis.

(3) The General Procuratorate is responsible for the consultation on the termination of criminal proceedings by the EPPO in the cases of Art. 39 Para. 3 EPPO Regulation. It has to speak out against the termination of the preliminary investigation by the EPPO and request the transfer of the criminal proceedings according to Art. 34, Paragraph 6 EPPO, if

1.

the facts of the case have not yet been sufficiently clarified, taking into account Section 108 (1) (2) StPO,

2.

a conviction on the basis of sufficiently clarified facts is obvious or

3rd

there is no reason to discontinue the case or to withdraw from the prosecution.

(4) If the preliminary investigation is to be finally concluded on the basis of the conditions agreed with the accused (Art. 40 EPPO), the provisions on withdrawal from prosecution are to be applied mutatis mutandis in accordance with domestic law.

Main and appeal proceedings

§ 15.

 (1) The regional court as lay judge is responsible for the main proceedings on the basis of an indictment by the EPPO (Art. 36 EPPO-VO).

(2) An objection to the indictment can also be raised on the grounds (Section 212 (6) of the Code of Criminal Procedure) that the indictment appeals to a domestic court contrary to Art. 36 (3) EPPO. The court can report such concerns about its jurisdiction to the higher regional court (Section 213 (6) StPO). If the indictment invokes a court in Germany, contrary to Art. 36 (3) EPPO, the higher regional court must reject the indictment.

(3) The EPPO has the rights of the national public prosecutor’s office in appeal proceedings before the Supreme Court.

Exceptionally high investigative costs

§ 16.

If the costs of carrying out an investigative measure reach an exceptionally high level, the European Delegated Public Prosecutor must submit a reasoned request to the EPPO for reimbursement of costs. In any case, an exceptionally high level can be assumed if the costs exceed 100,000 euros. The EPPO’s decision to reimburse costs must be included in the file or documented in the file.

2nd section
International cooperation

general requirements

§ 17.

 The EPPO only has the provisions of the Extradition and Legal Assistance Act (ARHG), Federal Law Gazette No. 529/1979, the EU JZG and the Iceland-Norway Transfer Act (INÜG), Federal Law Gazette I. No. 20 / 2020, to be applied accordingly.

Application of provisions on extradition and the (European) arrest warrant

§ 18.

In proceedings of the EPPO, the provisions of main part I of the ARHG and sections 68 to 70 ARHG on obtaining extradition, section 1 (2), sections 3, 4 and the provisions of section 4 of main part II of the EU JZG on obtaining the execution of a European arrest warrant and §§ 1, 4 and 6 to 9 INÜG on extradition from Iceland and Norway (surrender) to apply mutatis mutandis; however, the European arrest warrant (§ 2 no. 1 EU-JZG) and the arrest warrant (§ 6 paragraph 1 INÜG) are not to be approved by the court.

Application of provisions on freezing orders

§ 19.

 In proceedings of the EPPO, Section 1 (2) and Sections 44 to 51 EU-JZG are only to be applied accordingly in the event that a security is to be obtained in a non-participating Member State.

Application of provisions on mutual legal assistance and the European Investigation Order

§ 20.

 (1) In proceedings of the EPPO, the provisions of main part I of the ARHG and Sections 50 to 59a and 71 to 73 ARHG as well as Section 1 (2) and Sections 55 to 57 and 71 to 75 EU-JZG shall apply mutatis mutandis , if

1.

the enforcement of an EIO is to be obtained in a non-participating member state or mutual legal assistance is to be obtained in a non-participating member state or a third country, or

2.

under the special prerequisites of Art. 31 (6) EPPO, the enforcement of a European investigation order is to be obtained in another participating member state or such is to be enforced in the federal territory or

3rd

the EPPO is requested to transmit parts of the files of the investigative proceedings it is conducting or to provide information about these and no charges have yet been brought.

(2) If, in domestic criminal proceedings, the EPPO is to be requested to transmit parts of the files from the investigative proceedings it is conducting or to provide information about these and no charges have yet been made, Sections 56 to 56b of the EU JZG shall apply mutatis mutandis.

Application of provisions on other cooperation in criminal matters

§ 21.

 (1) Sections 59a to 59c EU-JZG are to be applied mutatis mutandis if it is to be avoided that the EPPO and an authority of a non-participating member state conduct parallel proceedings.

(2) The provisions of main part I of the ARHG and Sections 76a and 76b ARHG as well as Sections 60 to 62 and 76 EU-JZG are to be applied mutatis mutandis if the EPPO is to participate in a joint investigation group.

(3) The EPPO has to apply §§ 77 to 80 EU-JZG mutatis mutandis if information from the criminal records is to be obtained about citizens of other Member States.

(4) If the court intends to obtain the supervision of a decision on the use of milder means in another member state, Sections 115 to 121 of the EU JZG shall apply mutatis mutandis.

3rd section
Application of the provisions of the StAG and the GebAG

Application of the provisions of the StAG

§ 22.

 (1) The provisions of the Federal Act on Public Prosecutor Authorities (Public Prosecutor Act – StAG), Federal Law Gazette No. 164/1986, are only applicable to the extent that this is provided for in this Federal Act.

(2) The provisions of the StAG on dealings with the court (Section 32 (1)) and the inspection of court files (Section 33) are to be applied. The investigation is to be carried out in accordance with § 34c StAG.

(3) Sections 34a and 34b StAG only apply to the extent that the EPPO uses the respective federal data processing.

(4) For complaints against a European Delegated Public Prosecutor regarding his performance of office (supervisory complaint), § 37 StAG shall apply mutatis mutandis. The complaint must be submitted to the European Public Prosecutor appointed for the Republic of Austria.

Application of the provisions of the GebAG

§ 23.

 Sections 23a and 52 of the Fee Claims Act (GebAG), Federal Law Gazette No. 136/1975, are to be applied with the proviso that within the scope of Section 23a GebAG, the head of the public prosecutor’s office must determine the fees for the criminal proceedings would be responsible (§ 10).

4th section
Judicial administration

Domestic safeguarding of the operation and functionality of the EPPO

§ 24.

In their areas of responsibility, the organs of the administration of justice must guarantee the personnel and material requirements for the operation of the EPPO in Germany, taking into account the principles of legality, expediency, economic efficiency and economy. The organs of the administration of justice have to respect the independence of the EPPO according to Art. 6 EPPO-VO.

5th section
Final provisions

References

§ 25.

 (1) Insofar as reference is made in this federal act to other federal acts, these are to be applied in their currently valid version.

(2) References to the public prosecutor’s office contained in other federal acts shall also apply as references to the EPPO, unless otherwise stated in this federal act.

Come into effect

§ 26.

 This federal law comes into force on the day following its announcement.

Completion

§ 27.

 The Federal Minister of Justice, the Federal Minister of the Interior and the Federal Minister of Finance are entrusted with the implementation of this federal law – depending on their area of ​​responsibility.

Article 2
Amendment of the Judiciary and Public Prosecutor’s Service Act

The Judges and Public Prosecutor’s Office Act (RStDG), Federal Law Gazette No. 305/1961, last amended by the Federal Act, Federal Law Gazette I No. 153/2020, is amended as follows:

1. After Section 203, the following Sections 204 and 204a are inserted together with the heading:

“European Delegated Prosecutors

Section 204.

 (1) For the duration of the appointment as European Delegated Public Prosecutor in accordance with Regulation (EU) 2017/1939 for the implementation of enhanced cooperation for the establishment of the European Public Prosecutor’s Office (EPPO), OJ No. L 283 of October 31, 2017 P. 1, the national public prosecutor is on leave against loss of salary, whereby the right to vacation leave remains unaffected.

(2) Notwithstanding Section 7 (1) of the Civil Service Health and Accident Insurance Act (B-KUVG), Federal Law Gazette No. 200/1967, the insurance is not interrupted in the event of a leave of absence in accordance with Section 1. The contribution basis for the assessment of the social security and pension contributions to be paid by the European Delegated Public Prosecutors during parental leave according to Paragraph 1 is the full monthly payment that the public prosecutor would have been entitled to if he or she had not been on leave. All contribution parts are to be borne and paid by the employer.

(3) The period of parental leave according to Paragraph 1 shall be taken into account for rights that depend on the length of the employment relationship.

Special disciplinary and service law provisions for European Delegated Public Prosecutors

§ 204a.

 (1) Disciplinary proceedings against a European Delegated Public Prosecutor can only be initiated upon application by the service authority.

(2) If the service authority intends to take legal action against a national public prosecutor who has been appointed European Delegated Public Prosecutor for reasons that are inconsistent with his or her obligations under Regulation (EU) 2017/1939 are in connection with filing an application to initiate disciplinary proceedings, they must inform the European Public Prosecutor General in advance.

(3) The service authority may not file an application against a European Delegated Public Prosecutor without the consent of the European Public Prosecutor General for reasons related to his or her duties under Regulation (EU) 2017/1939 to initiate disciplinary proceedings. If the European Public Prosecutor General does not give his or her consent, the service authority may request the College to review the matter in accordance with Art. 9 of Regulation (EU) 2017/1939.

(4) During an upright leave of absence against loss of remuneration according to Section 204 (1), a description of the duties of a European Delegated Public Prosecutor must be omitted. This also applies if the European Delegated Public Prosecutor had to be described for the previous calendar year. In this case, the next job description must be for the first full calendar year after the end of the parental leave. “

2. The following paragraph 75 is added to Section 212:

“(75) Sections 204 and 204a including the headings in the version of the Federal Law, Federal Law Gazette I No. 94/2021 come into force on the day following the announcement.”

Article 3
Change of the EU-JZG

The Federal Law on Judicial Cooperation with the Member States of the European Union (EU-JZG), Federal Law Gazette I No. 36/2004, last amended by the Federal Law, Federal Law Gazette I No. 20/2020, is amended as follows:

1. In the table of contents, the following entry is inserted after the entry for § 19:

“Section 19a

Questioning or conditional handover prior to the decision on handover “

2. In the table of contents, the entry for § 27 is omitted.

3. In the table of contents, the following entry is inserted after the entry for § 33:

“Section 33a

Transit of Union citizens “

4. In the table of contents, the following entries are inserted before the entry for § 45:

“First subsection

Implementation of Regulation (EU) 2018/1805

§ 43

Enforcement of freezing orders

§ 44

Obtaining the enforcement of freezing orders

Second subsection

Enforcement of freezing orders from Denmark and Ireland “

5. In the table of contents, the entry for the heading of the first subsection of the third section of III. Main piece:

“Implementation of Regulation (EU) 2018/1805”

6. The entry for § 52 in the table of contents reads:

“Section 52

Enforcement of confiscation orders “

7. In the table of contents, the following entries are inserted after the entry for § 52:

“Second subsection

Enforcement of confiscation orders from the Member States Denmark and Ireland

§ 52a

Requirements”

8. In the table of contents, in the entry for Section 52a, the term “Section 52a” is replaced by the term “Section 52a1” .

9. In the table of contents, the entry for the designation of the second subsection of the third section of III. Main part replaced by the entry “Third Subsection” .

10. In the table of contents, the entries for the title and heading of the eighth subsection of the second section of the fourth main line are replaced by the following entries:

“Third section

Special forms of cooperation “

11. The text of § 2 is given the paragraph designation “(1)” and the following paragraph 2 is added:

“(2) In the scope of Regulation (EU) 2018/1805 on the mutual recognition of freezing and confiscation orders, OJ No. L 303 of November 28, 2018 p. 1, the definitions are based on Art. 2 of the Regulation (EU ) 2018/1805. “

12. § 5a reads:

 § 5a.

 Section 5 (4) to (6) shall apply mutatis mutandis to a Union citizen against whom a European arrest warrant has been issued, if

1.

the Union citizen is domiciled or permanently resident in Germany,

2.

it can be assumed that the execution of a prison sentence in Germany serves to facilitate rehabilitation and reintegration of the convicted person into society, and

3rd

he has not forfeited his right of residence through conduct that represents an actual, present and significant danger to public order or security. “

13. Section 19 (1) reads:

“(1) The requirements for a surrender (§§ 4 to 13 and Paragraph 4) are to be checked against the content of the European arrest warrant.”

14. After Section 19, the following Section 19a and its heading are inserted:

“Questioning or conditional handover prior to the decision on handover

§ 19a.

 Until the decision on the handover is made, the person concerned is at the request of the issuing judicial authority

1.

to be heard, whereby Sections 55h and 55k are to be applied accordingly, or

2.

to be transferred temporarily if their presence at the negotiation on the admissibility of the surrender can be guaranteed; Section 26 is to be applied accordingly. “

15. Section 21 (2) first sentence reads:

“A final decision on the execution of the European arrest warrant must be made within 60 days of arrest.”

16. Paragraph 27 and its heading are omitted.

17. In Section 29 (2), after the phrase “European arrest warrant”, the phrase “including the court authorization” is inserted.

18. After Paragraph 29 (2a), the following paragraph 2b is inserted:

“(2b) The transmission of the European arrest warrant according to Paragraphs 2 and 2a can be combined with the request to the accused or accused

1.

to be heard, whereby it can be requested to proceed analogously according to §§ 55h and 55k, or

2.

to be transferred temporarily, with a promise that his presence at the negotiation on the admissibility of the transfer will be guaranteed. “

19. Paragraph 4, penultimate sentence and paragraph 5, last sentence, are omitted in Section 31.

20. After Section 33, the following Section 33a and its heading are inserted:

“Transit of Union citizens

§ 33a.

 According to Section 33 (2) and (3), the procedure is also to be followed if the European arrest warrant was issued against a Union citizen and

1.

the Union citizen is domiciled or permanently resident in Germany,

2.

it can be assumed that the execution of a prison sentence in Germany serves to facilitate rehabilitation and reintegration of the convicted person into society, and

3rd

he has not forfeited his right of residence through conduct that represents an actual, present and significant danger to public order or security. “

21. In the III. In the main part, the following first subsection and the following subsection name and subsection heading are inserted after the heading of the second section:

“First subsection
Implementation of Regulation (EU) 2018/1805

Enforcement of freezing orders

§ 43.

(1) A freezing order (Art. 2 Para. 1 Regulation (EU) 2018/1805) issued by a Member State other than Denmark or Ireland on property (Art. 2 Para. 3 Regulation (EU) 2018/1805), which leads to a subsequent confiscation order ( Art. 2 (2) Regulation (EU) 2018/1805) must be enforced in accordance with the provisions of Regulation (EU) 2018/1805 and the provisions of this subsection.

(2) The public prosecutor’s office shall initiate proceedings for the enforcement of a freezing order if another member state sends a certificate (Art. 6 Regulation (EU) 2018/1805) or, based on certain facts, it can be assumed that an asset that is included in the Schengen information system for The manhunt is advertised, is located in the country. The decision-making authority is to be requested to submit a certificate or a request for mutual assistance, setting a reasonable deadline, if the asset is found in Germany.

(3) If the freezing order is not based on any of the criminal acts listed in Art. 3 Paragraph 1 of Regulation (EU) 2018/1805, the mutual criminal liability shall be examined (Art. 8 Paragraph 1 lit. 1805).

(4) The public prosecutor’s office as the enforcement authority (Art. 2 (9) Regulation (EU) 2018/1805) in whose area the asset is located or the person concerned has assets in which the decision is located is responsible for the procedure for enforcing a freezing order can be enforced. If the responsibility cannot be determined after this, the place where the person concerned has his place of residence or residence is decisive; it is an association (Section 1, Paragraphs 2 and 3 VbVG), including the place where it has its registered office, business or branch. If responsibility cannot be determined according to these provisions, the Vienna Public Prosecutor is responsible.

(5) If an application would have to be made for the seizure of the freezing order in a comparable domestic case in accordance with domestic legal provisions, the public prosecutor’s office shall submit the necessary applications to the court. Insofar as the court considers it necessary for legal or factual reasons to obtain further information from the issuing authority in the proceedings on an application from the public prosecutor’s office or after the execution of the freezing order, or to submit a request in accordance with Article 12 (2) of Regulation (EU) 2018/1805 To judge these, it has to issue the necessary orders to the public prosecutor’s office.

(6) If paragraph 5 is not to be followed, it is the public prosecutor’s office to order the execution of the freezing order. The order must contain:

1.

the information specified in Section 102 (2) 1, 2 and 4 StPO,

2.

a justification from which the admissibility of the enforcement results, and

3rd

a photocopy of the security certificate.

(7) The legal remedies provided for under national law are available against the order of the public prosecutor’s office, against the decision of the court and against violations of the law in the context of the execution of the seizure, without prejudice to Article 33 (2) of Regulation (EU) 2018/1805.

Obtaining the enforcement of freezing orders

§ 44.

If a seizure is to be obtained in another member state besides Denmark and Ireland during the preliminary investigation, the public prosecutor’s office must apply to the court for seizure (Section 109 (2) of the Code of Criminal Procedure). The freezing certificate (Annex I of Regulation (EU) 2018/1805) must then be issued and transmitted by the court.

Second subsection
Enforcement of freezing orders from Denmark and Ireland “

22. In Paragraph 45 (2), the phrase “all Member States of the European Union” is replaced by the phrase “Denmark and Ireland” .

23. Section 46 (1) first sentence reads:

“Section 43 Paragraphs 2 and 4 to 7 apply mutatis mutandis.”

24. Paragraph 46 (3) reads:

“(3) A decision on whether to enforce a freezing order is to be made within 24 hours if possible. The issuing judicial authority must be informed of the decision. “

25. In Section 50, the phrase “the court” is replaced by the phrase “the public prosecutor’s office” .

26. The heading of the first subsection in the third section of III. The main part is:

“Implementation of Regulation (EU) 2018/1805”

27. Paragraph 52 including the heading reads:

“Enforcement of confiscation orders

Section 52.

 (1) A confiscation order (Art. 2 Para. 2 Regulation (EU) 2018/1805) issued by a Member State other than Denmark and Ireland relating to property (Art. 2 Para. 3 Regulation (EU) 2018/1805) is subject to the provisions of the Regulation (EU) 2018/1805 as well as the provisions of this subsection.

(2) If the confiscation order is not based on any of the criminal acts listed in Article 3 (1) of Regulation (EU) 2018/1805, the mutual criminal liability must be examined (Article 19 (1) (f) of Regulation (EU) 2018) / 1805).

(3) The single judge of the regional court is responsible for the decision on the enforcement of a confiscation order.

(4) The local jurisdiction is based on the place where the property covered by the confiscation decision is located or where the person concerned has property in which the decision can be enforced. If the responsibility cannot be determined after this, the place where the person concerned has his place of residence or residence is decisive; it is an association (Section 1, Paragraphs 2 and 3 VbVG), including the place where it has its registered office, business or branch. If the jurisdiction of a particular court cannot be determined according to these provisions, the Regional Court for Criminal Matters Vienna is responsible.

(5) If assets that are subject to confiscation are not secured, the court may, at the request of the public prosecutor, order them to be secured (Art. 18 (5) Regulation (EU) 2018/1805) if this seems necessary to secure the confiscation and not on the basis of certain facts it can be assumed that the confiscation order will have to be rejected.

(6) The confiscation order is to be served on the person concerned and he is to be heard about the prerequisites for enforcement, provided that it can be summoned in Germany.

(7) The enforcement of the confiscation order is to be decided by resolution. The decision must contain the name of the authority whose decision is being enforced, its file number, a brief description of the facts including the place and time of the offense and the measures ordered, as well as the description of the criminal act.

(8) If the enforcement of a confiscation order for a monetary amount is assumed, the amount to be enforced in Germany is to be set at the amount that is stated in the decision to be enforced. If this amount is not given in euros, the conversion must be carried out at the exchange rate applicable on the day the decision to be enforced was issued. Payments already made and amounts contributed are to be taken into account.

(9) The public prosecutor’s office and the person affected by the decision can lodge a complaint with the Higher Regional Court against a decision pursuant to paras. 7 and 8 within 14 days. A complaint against the enforcement of a confiscation order filed in good time has suspensive effect.

(10) Once the decision has become final, Section 408 (1) of the Code of Criminal Procedure shall be followed.

(11) If the enforcement is declared inadmissible, the public prosecutor’s office must report to the Federal Ministry of Justice by sending a copy of the decision and a photocopy of the confiscation order. “

28. The previous section 52a is given the name “Section 52a1” , and the phrase “from another Member State” is no longer used in Paragraph 1 .

29. After § 52, the following subsection designation and heading as well as the following § 52a and heading are inserted:

“Second subsection
Enforcement of confiscation orders from the Member States Denmark and Ireland

requirements

Section 52a.

 A property-related order (§ 2 no. 11) issued by a Danish or Irish court will be enforced in accordance with the provisions of this subsection. “

30. Section 52b reads:

 Section 52b.

Section 52 (3) and (4) apply. If the court that has been seized with the enforcement does not have jurisdiction, it assigns the matter to the competent court. “

31. In Paragraph 52c, in Paragraph 2, Item 2, the designation “Paragraph 52a” is replaced by the designation “Paragraph 52a1” and in Paragraph 4 the quotation in brackets “(§§ 52, 52a)” by the quotation in brackets “(§ 52a1)” replaced.

32. § 52d reads:

 Section 52d.

 Section 52 (5) and 7 to 11 shall apply. “

33. The quotation in brackets is omitted in Section 52e (1) no.

34. In Section 52i, the quotation in brackets “(Section 52b Paragraph 3)” is replaced by the quotation in brackets “(Section 52b, second sentence)” in Item 1 and the quotation in brackets “(Section 52d Paragraph 2)” with the quotation in brackets “ (§§ 52d, 52 Paragraph 8) “ replaced.

35. In the third section of III. The main part of the previous second subsection is given the designation “third subsection” .

36. In § 52k, the following paragraph 1a is inserted after paragraph 1:

“(1a) In relation to the Member States with the exception of Denmark and Ireland, Regulation (EU) 2018/1805 must be followed. If the enforcement is to be obtained by Denmark or Ireland, the further provisions of this subsection shall apply. “

37. Section 55a (1) no.13 reads:

“13.

in the case of a European investigation order to carry out an observation, a surveillance of messages or an optical and acoustic surveillance of persons, the surveillance would not be approved in a comparable domestic case. “

38. In Section 56 (1), the phrase “this is how a European Investigation Order is to be issued” is replaced by the phrase “this is how a European Investigation Order can be issued. In doing so, it must be taken into account whether the referral to another Member State is proportionate to the weight of the crime, the gravity of the guilt, the consequences of the offense, the degree of suspicion and the desired success ” .

39. The following paragraph 6 is added to Section 61:

“(6) Section 14 (1) to (5) shall apply mutatis mutandis to business transactions.”

40. According to § 74 the subsection designation and the subsection heading are replaced by the following section designation and section heading:

“Third section
Special forms of cooperation “

41. The following paragraph 4 is added to Section 76:

“(4) Section 14 (1) to (5) shall apply mutatis mutandis to business transactions.”

42. In § 80 the word “section” is replaced by the word “subsection” .

43. The following paragraph 19 is added to Section 140:

“(19) The entries in the table of contents, Section 2, Section 5a, Section 19 Paragraph 1, Section 19a including the heading, Section 21 Paragraph 2, Section 29 Paragraph 2 and 2b, Section 31 Paragraph 4 and 5, Section 33a including heading, the first subsection of the second section of III. Main part, title and heading of the second subsection of the second section of the III. Main part, Section 45 Paragraph 2, Section 46 Paragraph 1 and 3, Section 50, the heading of the first subsection of the third section of III. Main part, Section 52 including the heading, the designation of Section 52a1, Section 52b, Section 52c Paragraph 2 Item 2 and Paragraph 4, Section 52c, Section 52e Paragraph 1 Item 1, Section 52i Items 1 and 2, the designation of the third party Subsection of the third section of III. Section 52k, Paragraph 1a, Section 55a, Paragraph 1, Item 13, Section 56, Paragraph 1, Section 61, Paragraph 6, designation and heading of the third section of Section IV, Section 76, Paragraph 4 and § 80 as amended by Federal Law Gazette I No. 94/2021 come into force on the day following the announcement. The entry to § 27 in the table of contents and § 27 including the heading expire at the end of the day of the announcement. “

Article 4
Amendment to the Extradition and Legal Assistance Act

The Extradition and Legal Assistance Act (ARHG), Federal Law Gazette No. 529/1979, last amended by the Federal Act, Federal Law Gazette I No. 20/2020, is amended as follows:

1. The following sentence is added to Section 26 (1):

“If the same person receives several requests for extradition or for consent to further criminal prosecution or execution (Section 40), which are in a specialty relationship (Section 23), they are to be conducted in a joint extradition procedure.

2. In Section 31 (1a), after the phrase “and this”, the phrase “a description of the criminal act on which the extradition request is based, its legal assessment” is inserted.

3. Section 64 (2) reads:

“(2) The enforcement of the decision of a foreign court with which a prison sentence or preventive measure associated with deprivation of liberty has been pronounced is only permissible if the convicted person

1.

is an Austrian citizen,

2.

has his place of residence, residence or ties in Germany, or, based on certain circumstances, it can be assumed that enforcement in Germany serves to facilitate the rehabilitation and reintegration of the convicted person into society, and

3rd

has consented to enforcement in Germany. “

4. The following sentence is added to Section 65 (1):

“If, however, the sentencing state would not consent to the transfer under these conditions and the convicted person would be disproportionately harsh in the execution of the detention in the sentencing state, the execution of the entire sentence still to be executed or the preventive measure associated with deprivation of liberty is permissible in Germany.”

5. The following paragraph 4 is added to Section 78:

“(4) Section 26 (1), Section 31 (1a), Section 64 (2) and Section 65 (1) in the version of the Federal Law, Federal Law Gazette I No. 94/2021, shall come into force on the day following the announcement. “

Article 5
Amendment of the Financial Criminal Law

The Financial Criminal Law (FinStrG), Federal Law Gazette No. 129/1958, last amended by the Federal Law, Federal Law Gazette I No. 52/2021, is amended as follows:

The following sentence is added to Section 195 (1):

“If the European Public Prosecutor’s Office is responsible, Regulation (EU) 2017/1939 on the implementation of enhanced cooperation to establish the European Public Prosecutor’s Office (EPPO), OJ No. L 283 of October 31, 2017 p. 1, in its currently valid version, apply, as well the provisions of the federal law for the implementation of the European Public Prosecutor’s Office (EUStA-DG). “

Article 6
Amendment of the Criminal Code

The Criminal Code (StGB), Federal Law Gazette No. 60/1974, last amended by the Federal Law, Federal Law Gazette I No. 154/2020, is amended as follows:

1. In Section 58 (3) (2), the phrase “including comparable measures by the European Public Prosecutor’s Office” is inserted after the word “indictment” .

2. In Section 64 (1) no. 3, after the phrase “Code of Criminal Procedure or”, the phrase “according to Regulation (EU) 2017/1939 on the implementation of enhanced cooperation for the establishment of the European Public Prosecutor’s Office (EPPO), OJ No. L 283 from October 31, 2017 p. 1, as well as “ inserted.

3. Section 168c is given the name “Section 168f” and Section 168d is given the name “Section 168g” .

4. In Section 288 (4), the word “or” is replaced by a comma after the word “Kriminalpolizei” and the phrase “or European Public Prosecutor” is inserted after the word “Public Prosecutor” .

5. In Section 293 (1) and (2), the phrase “after Regulation (EU) 2017/1939” is inserted after the word “Code of Criminal Procedure” .

6. In Section 295, the phrase “or after Regulation (EU) 2017/1939” is inserted after the word “Code of Criminal Procedure” .

7. In § 296, the phrase “the European Public Prosecutor’s Office” is inserted after the phrase “the public prosecutor’s office” .

Article 7
Come into effect

Art. 6

 comes into force on the day following the announcement of the Federal Law, Federal Law Gazette I No. 94/2021.

Van der Bellen

Short

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