1.1. Introduction of bank account registry in 2015
In 2015 Austria introduced a centralised bank account registry (Kontenregister) for bank accounts and deposits within Austria. The purpose of such registry is to provide information regarding existing bank accounts and deposits to criminal prosecutors, financial criminal authorities, and tax authorities.
The account registry contains basic information about (i) the holder's name, address, and place of residence, and additionally the birth date in case of individuals; (ii) the account or deposit number; (iii) the account or deposit opening / closure dates; (iv) the name of the credit institution or the depositary; and (v) information about trustors, beneficial owners, and persons with authority over the account or deposit (less sensitive external information). The account registry does, however, not contain information about account movements and underlying transactions, and the account or deposit balance (more sensitive internal information). Credit institutions must provide all necessary data periodically to the Minister of Finance in electronic form starting with data from 1 March 2015 onwards.
1.2. Access to data from the account registry by prosecutors and courts
As of 1 August 2016 public prosecutors may access information contained in the account registry without prior court approval. This will facilitate the investigation for the prosecutor. Until now, the courts have carefully assessed whether information from bank accounts and expected results are justifiably proportionate to the presumed infringement upon the rights of the defendant. In addition, the courts also considered whether there is a reasonable chance of achieving the same result by taking less intrusive measures. The assessment of the proportionality now lies in the hands of the prosecutor.
Searches in the registry will be possible by name or by account / deposit, which also constitutes a considerable advantage for the prosecutor. Under current law, the prosecutor has to address the court order to all of the five bank associations in Austria if they do not know the exact bank account number of the suspect. This leads to significant delays in proceedings.
1.3. Remedies against unlawful access to the bank account registry
Since access to the account registry does not involve credit institutions any longer (which often objected the request), it is now up to the defendant to assert its rights. The defendant may (i) object to the prosecutor's decision if it seems unlawful; and (ii) appeal a subsequent court decision. See our Legal Insight dated 31 January 2014 for details (http://www.schoenherr.eu/de/knowledge/knowledge-detail/austria-new-legal-remedy-against-police-activities-within-criminal-investigations/). This remedy does, however, not have a suspensory effect. The public prosecutor may already use all information contained in the account registry to advance its investigation. From the defendant's point of view the fact that the information must subsequently be destroyed (in case the remedy was successful) offers only little consolation.
2.1. Request for full account disclosure as of 1 August 2016
Currently, public authorities may request disclosure of basic information on bank accounts and bank operations such as the name the address of the account holder, as well as corresponding identification documents and/or the confirmation that a certain person has a business relationship with a certain bank "if this information is deemed necessary to clarify an intentionally committed criminal act." In addition, public authorities may request the disclosure of all documentation relating to the account holders business relationship with the bank if:
- this information is deemed necessary to determine whether an order to secure confiscation (Article 19a Criminal Code), forfeiture (Article 20 Criminal Code), extended forfeiture (Article 20b Criminal Code) or any other offence related property order should be issued in criminal proceedings; and/or
- the authorities have reason to believe that they will seize items, documents and other records relevant for their investigation; and/or
- a transaction relating to a criminal act is to be conducted through the business relationship.
The order to access a suspect's account information has to be obtained through the courts. Once approved by the court, the order is then forwarded by the public prosecutor to the credit or financial institution, and to the defendant and persons owning or authorised to access the account. However, the public prosecutor can ask for service on the defendant and the owners of the account to be postponed, so as not to derail the investigation.
2.2. Possible remedies against full account disclosure
Since in practice, the possibility to delay the service of the order to the defendant has become the rule, the burden to decide whether to file for a remedy generally lies with the financial institutions.
Currently, a financial institution can object to the seizure of certain documents if it deems them to be covered by bank secrecy and can request that these documents are separately stored with the court. The court would then decide which documents may be reviewed by the public prosecution authority. However, this right will change as of 1 August 2016. Pursuant to the new wording of sec 116 of the Austrian Criminal Code of Criminal Procedure financial institutions may no longer object to the seizure of documents and/or request a separate storage by the court. Instead, financial institutions will be limited to filing a complaint against the court order which will continue to have a suspensory effect. In case the remedy is successful, the documents will be considered as having been unlawfully obtained and will have to be destroyed.