Austrian OGH: Fraud Money Recovery Possible Despite Forfeiture

May 2, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court of Justice (Oberster Gerichtshof, hereinafter OGH) has ruled that a claim based solely on the law of unjust enrichment can justify participation in criminal forfeiture proceedings under Section 444(2) of the Austrian Code of Criminal Procedure (Strafprozessordnung, hereinafter StPO). This ruling strengthens the protection of fraud victims in cases where the state declares seized assets to be forfeited.

In the case at hand, a German citizen had transferred approx. EUR 21,700 to a fraudulent online platform, thinking he was buying gold bars. The money was then moved to an account at an Austrian bank, which had originally been opened by an unsuspecting Austrian woman.

In separate criminal proceedings, the assets seized from the account — amounting to around EUR 200,000 — were declared forfeited to the Republic of Austria. However, the plaintiff was not involved in these proceedings because the lower courts ruled that he could not assert any specific rights to the seized money, such as ownership or a contractually secured claim. Consequently, his civil action for repayment was dismissed by the first two courts.

However, the OGH took a different view, clarifying that a claim under the law of unjust enrichment, i.e. a claim arising from an unjustified transfer of assets, is sufficient to establish a ‘participation in the assets’ within the meaning of Section 444(2) of the StPO, the decisive factor being that the plaintiff’s money had actually gone into the forfeited account and that the criminal court’s forfeiture order effectively deprived the plaintiff of any realistic possibility of recovering his loss through civil law.

Therefore, the plaintiff does indeed have a claim for restitution against the account holder under the law of unjust enrichment because his payment was made without legal grounds. The only way he could recover the money was to claim a proportionate share of the forfeited credit balance to which his payment had been credited.

The court emphasised the victim’s right to compensation under Section 10(3) of the StPO. Section 444(2) of the Code must also be interpreted in accordance with the EU Victims’ Rights Directive, meaning that a claim under the law of unjust enrichment can be considered a ‘claim to an object’.

The Republic of Austria is therefore required to reimburse the plaintiff an amount exceeding EUR 21,000, plus interest and legal costs.

(OGH, 3 Ob 222/24d, 26 February 2025.)