I. Criminal Asset Recovery
1. Tracing
1) To the extent it appears necessary for solving a case of money laundering within the meaning of the Criminal Code, a predicate offense of money laundering, or an offense in connection with organized crime, banks and finance companies shall be required by judicial ruling
- to disclose the name, other data known to them concerning the holder of a business relationship, and the address of such person,
- provide information on whether a suspect maintains a business relationship with this institution, is a beneficial owner or authorized person of such a business relationship, and, if this is the case, provide all information necessary to precisely determine this business relationship and all documents concerning the identity of the holder of the business relationship and his powers of disposal,
- all documents and other materials concerning the type and scope of the business relationship and associated business processes and other business incidents in a specific past or future time period.
The same shall apply if, on the basis of particular circumstances, it must be assumed that the business relationship has been or continues to be used for transacting a pecuniary advantage that was obtained through punishable acts or received for such acts (§ 20 StGB) or is subject to the power of disposal of a criminal organization or terrorist group or has been made available or collected as a means of financing of terrorism (§ 20b StGB).
2) Instead of the originals of documents and other materials, photocopies may also be issued if their correspondence with the originals is beyond doubt. If data carriers are used, the bank or finance company must issue permanent reproductions that are readable without any additional aids or must have such reproductions produced; if automated data processing is used to administer the business relationship, then an electronic data carrier in a generally used file format may be transmitted. § 96 paragraph 3 shall apply mutatis mutandis.
3) A ruling under paragraph 1 shall in all cases be served upon the bank or finance company. Service upon other persons with powers of disposal that arise from the business relationship and have become known may be deferred if service would endanger the purpose of the investigation. The bank or finance company shall be notified of this and must maintain secrecy for the time being with respect to all facts and processes associated with the judicial order vis-à-vis clients and third parties. Under these conditions, persons working for them may also not inform the contracting party or third parties about ongoing investigations.
4) If the bank or finance company does not want to cede certain documents or other materials or does not want to divulge certain information, then §§ 96 et seq. shall apply mutatis mutandis. The prohibition against providing information under paragraph 3 shall not be affected thereby.
1) If the suspicion of unjust enrichment arises and it must be assumed that this enrichment will be absorbed under § 20 of the Criminal Code (StGB), or if the suspicion arises that assets are subject to the disposal of a criminal organization or terrorist group (§§ 278a und 278b StGB), are made available or have been collected as means of financing of terrorism (§ 278d), or originate from an act subject to punishment, and if it must be assumed that these assets will be subject to forfeiture under § 20 StGB, then the Court shall, on application of the Public Prosecutor, order the following measures in particular, for purposes of securing the absorption of the enrichment or the forfeiture, if it must be feared that collection would otherwise be endangered or significantly aggravated:
- the distraint, custody, and management of moveable physical objects, including the deposit of money,
- the judicial prohibition of selling or pledging moveable physical objects,
- the judicial prohibition of disposing of credit balances or of other assets,
- the judicial prohibition of selling, burdening, or pledging real estate or rights entered in the Land Registry.
Through the prohibition under point 3, the State shall acquire a lien on the credit balances and other assets.
2) The order may also be issued if the amount of the sum to be secured under paragraph 1 has not yet been determined precisely.
3) The order may specify an amount of money, the deposit of which prevents execution of the order. Once the deposit has been made, the order shall be lifted in this respect on application of the affected person. The amount of money shall be determined so that it covers the expected absorption of enrichment or the expected forfeiture.
4) The Court shall limit the duration for which the order is issued. This deadline may be extended upon application. If two years have passed since the order was first issued, without an indictment being made or an application submitted in the independent objective proceedings under § 356, then further extensions of the deadline for one additional year each shall only be permissible with the approval of the Court of Appeal.
5) The order shall be lifted as soon as the conditions for its issue have lapsed, especially also if it must be assumed that the absorption of enrichment or the forfeiture will not occur or if the deadline under paragraph 4 has expired.
6) A ruling on the issuing or lifting of the order may be appealed to the Court of Appeal by the Office of the Public Prosecutor, the accused, and other persons affected by the order (§ 354).
1) Anyone who:
- has committed a punishable act and has thereby gained pecuniary benefits, or
- has received pecuniary benefits for the commission of a punishable act
shall be sentenced to pay an amount of money equal to the unjust enrichment obtained thereby. To the extent that the amount of enrichment cannot be determined or only with disproportionate effort, the court shall specify the amount to be absorbed at its discretion.
2) If
- the perpetrator has continually or repeatedly committed crimes (§ 17) and obtained pecuniary benefits through or for their commission, and
- he has received other pecuniary benefits during the time connected with the crimes committed, and it is reasonable to assume that such benefits originate from other crimes of this kind, and their lawful origin cannot be credibly shown,
then these pecuniary benefits shall also be taken into account when specifying the amount to be absorbed.
3) A perpetrator who has gained pecuniary benefits during the time connected with his membership of a criminal organization (§ 278a) or a terrorist group (§ 278b) shall be sentenced to pay an amount of money specified at the court's discretion to be equal to the enrichment obtained, if it is reasonable to assume that such pecuniary benefits originate from punishable acts and their lawful origin cannot be credibly shown.
4) Anyone who has been enriched directly and unjustly through the punishable act of another person or through a pecuniary benefit paid for the commission of such act shall be punished to pay an amount of money equal to the enrichment. If a legal person or partnership has been enriched, then it shall be sentenced to pay this amount.
5) If a directly enriched party is deceased or if a directly enriched legal person or partnership no longer exists, then the enrichment shall be absorbed from the legal successor, to the extent that enrichment still existed at the time of legal succession.
6) Several enriched parties shall be sentenced according to their share in the enrichment. If this share cannot be determined, then the court shall specify it at its discretion.
1) Absorption shall be excluded to the extent that the enriched party has satisfied civil claims arising from the offense or has undertaken to do so by means of an enforceable contract, or the enriched party has been sentenced or is simultaneously being sentenced to do so, or the enrichment has been remedied by other legal measures.
2) Absorption shall be refrained from
- to the extent that the amount to be absorbed or the prospects for collection are disproportionate to the procedural efforts necessary for the absorption or collection, or
- to the extent that payment of the amount of money would disproportionately impede the development of the enriched party or would represent undue hardship for the enriched party, in particular because the enrichment no longer exists at the time of the order; other disadvantages resulting from a judgment shall be taken into account.
1) Assets subject to the power of disposal of a criminal organization (§ 278a) or a terrorist group (§ 278b) or that have been made available or collected as a means of financing of terrorism (§ 278d) shall be declared forfeited.
2) Assets originating from a punishable act shall be declared forfeited if the offense from which they arise is also punishable under the laws of the place where the offense was committed but, according to §§ 62 to 65, is not subject to Liechtenstein criminal laws and does not constitute a fiscal offense.
1) Forfeiture shall be excluded to the extent that
- the assets concerned are subject to legal claims of persons who are not involved in the punishable act, the criminal organization, or the terrorist group, or
- the purpose of forfeiture is attained by other legal measures, in particular to the extent that the unjust enrichment is absorbed by foreign proceedings and the foreign decision can be executed in Liechtenstein.
2) Forfeiture shall be refrained from if it would be disproportionate to the importance of the matter or the procedural efforts.
1) Objects which the perpetrator used to commit the punishable act, or which he designated for use in the commission of the act, or which have arisen from this act shall be confiscated if this appears to be called for, given the particular nature of the objects, to impede the commission of punishable acts.
2) Confiscation shall be refrained from if the entitled party eliminates the particular nature of the objects, especially by removing components or markings that facilitate the commission of punishable acts or by rendering them unusable. Objects subject to legal claims of a person not involved in the punishable act may only be confiscated if the person concerned does not guarantee that the objects will not be used for the commission of punishable acts.
3) If the preconditions for confiscation are met, then the objects shall also be confiscated if no particular person can be prosecuted or sentenced for the punishable act.
1) The penal judgment shall include a decision on the absorption of enrichment, forfeiture, confiscation, and other financial orders under supplemental criminal legislation, to the extent this section or other laws do not provide otherwise.
2) If the findings of the criminal proceedings do not suffice in themselves or upon conducting simple additional inquiries to form a reliable judgment on the financial orders referred to in paragraph 1, then this imposition may by ruling be reserved to a separate decision (§§ 356, 356a), except in the case that such an order is no longer permissible because of the assets or object concerned.
3) The decision on financial orders shall, expect in the case of § 356a, be equivalent to the imposition of the sentence and may be appealed to the advantage and to the disadvantage of the sentenced person or of other persons affected by the order.
1) Persons who have a right to the assets or objects threatened by forfeiture or confiscation or assert such a right, who are liable for fines or the costs of the criminal proceedings, or who, without being accused or indicted themselves, are threatened with absorption of enrichment, forfeiture, or confiscation, shall be summoned to the trial. In the trial and in the subsequent proceedings, they shall have the rights of the accused, to the extent that the proceedings concern the decision on these financial orders. If a summons has been served upon the affected persons, the proceedings may be conducted and decided even in their absence.
2) If the persons referred to in paragraph 1 only assert their right after entry into force of the decision on forfeiture or confiscation, they shall be at liberty to assert their claims to the object or its purchase price (§ 253) within thirty years after the decision vis-à-vis the State by way of civil proceedings.
4. Repatriation
(Sharing Agreements: offence committed in foreign country, agreement with foreign country or countries, conditions with regard to use of assets, decision on case by case basis, no bilateral treaty necessary.)
1) In the case of offences committed abroad, the Government may agree with the state where the offence was committed on the separation of absorbed, forfeited or confiscated assets and in particular include requirements with regard to the use of such assets in the agreement.
2) The Government is responsible for the enforcement.
1) If there are sufficient grounds for the assumption that the preconditions for absorption of enrichment (§ 20 StGB), forfeiture (§ 20b StGB), or confiscation (§ 26 StGB) are given, without the possibility of deciding thereon in criminal proceedings or in proceedings aimed at placement in one of the institutions referred to in §§ 21 to 23 StGB, then the accuser shall file an independent application for the issue of such a financial order.
2) The court that had or would have jurisdiction with respect to the hearings and judgment concerning the offense giving rise to the order shall, in independent proceedings after public oral hearings, decide on an application for absorption of enrichment or forfeiture by way of a judgment. If the Criminal Court or Court of Lay Assessors rendered judgment with respect to the offense that would give rise to the order, or reserved the decision (§ 353 paragraph 2), then its chairman shall be competent sitting as an individual judge.
3) The individual judge shall, in independent proceedings after public oral hearing, decide on an application for confiscation, as a rule (§ 356a) by way of a judgment. The provisions on trials concerning punishable acts not punishable by a sentence of imprisonment of more than six months and § 354 shall apply mutatis mutandis.
4) In application of the chapter on legal remedies mutatis mutandis, the judgment may be appealed to the advantage and to the disadvantage of the affected person; § 354 paragraph 1, sentence 3 shall apply mutatis mutandis.
If the preconditions for the independent proceedings only arise in the trial, then the decision may also be issued as part of the judgment in which the accused is acquitted or the application for placement in an institution is rejected.
