OGH: Local jurisdiction under Section 198 of the Financial Crimes Act (new)

Nov 24, 2021 Benn-Ibler Rechtsanwälte

The Supreme Court (Oberster Gerichtshof, OGH) issued a first decision on the new jurisdiction system in financial criminal cases. The files of judicial financial criminal proceedings submitted by a Higher Regional Court (Oberlandesgericht) pursuant to Section 215 para 4 sent 2 of the Code of Criminal Procedure (Strafprozessordnung, StPO) led the OGH to issue its first opinion on Sec. 198 and Sec. 265 para 2f of the Financial Crimes Act (Finanzstrafgesetz, FinStrG).

The special provision of Sec. 198 of the FinStrG did not enter into force until January 1, 2021, as the 2nd Financial Organisation Reform Act, BGBl I 2020/99 (2. Finanz-Organisationsreformgesetz, 2. FORG) changed the local jurisdiction for main proceedings for financial offences punishable by court order. However, for proceedings already pending by December 31, 2020, the local jurisdiction does not change under the transitional provision of Sec. 265 para 2f FinStrG.

Jurisdiction for main proceedings for financial offences is determined pursuant to Section 198 para 1, sentence 1, FinStrG, according to which the court with primary local jurisdiction (Sec. 36 StPO) is the court in whose district the accused as defined in Sec. 48 para 1 no 2 StPO had or had most recently had his or her main place of residence at the time the proceedings commenced.

Pursuant to Sec. 1 para 2 of the StPO, criminal proceedings begin as soon as the criminal police or the public prosecutor's office initiate preliminary proceedings on the basis of initial suspicion. Investigations by the financial criminal authority under Sec. 196 para 1 FinStrG are treated the same as criminal proceedings in court.

In the case at hand, the main proceedings began on March 12, 2021. Therefore, the new provision of Sec. 198 of the StPO applies here. According to the files, the defendant has had his main residence in Innsbruck since December 2, 2016. Thus, the Innsbruck Higher Regional Court (Oberlandesgericht Innsbruck) is responsible for the proceedings on the plea of guilty.

OGH 13 Ns 45/21b (29.09.2021)