In recent years, confiscation in criminal proceedings has evolved from a “side issue” into an independent risk area. Since the 2017 reform, confiscation pursuant to §§ 73 ff. StGB is regularly ordered in practice and often secured at the investigation stage, especially through asset seizures. For those affected, the financial impact can in individual cases be more serious than the threat of punishment itself. Moreover, confiscation measures are not limited to defendants; third parties can also be targeted, even if no criminal charges are brought against them.
Particularly in white-collar and tax criminal law, confiscation plays a central role. In proceedings for fraud (§ 263 StGB), breach of trust (§ 266 StGB), subsidy fraud (§ 264 StGB), loan fraud (§ 265b StGB), withholding and misappropriating wages (§ 266a StGB) and in tax offences (§§ 370 ff. AO), the question of the confiscation risk is regularly among the first and most important issues for clients.
Confiscation under §§ 73 ff. StGB – basic principles
Confiscation is governed by §§ 73 ff. StGB and is based on the legislative principle that crime must not pay. The aim is to confiscate that which has been obtained “through” or “for” an unlawful act.
The central concept is that of “obtained property”. This covers everything that has actually accrued to the perpetrator’s assets through or as a result of the offence – i.e. all economically measurable benefits. In confiscation proceedings, the concrete proceeds are first established, followed by an evaluative assessment under § 73d StGB. According to the gross principle, counter-performance received or expenses are generally not deductible.
The 2017 reform fundamentally reorganised and significantly strengthened confiscation law. Since then, confiscation has as a rule been mandatory whenever the legal conditions are met.
Confiscation of proceeds and value – what can be confiscated?
The core of confiscation is the confiscation of proceeds of crime (§ 73 StGB). Proceeds are assets which the perpetrator or participant has obtained through the commission of the offence. This includes, in particular, payments, claims, saved expenses or other economic advantages.
Under § 73a StGB, the court may, in ongoing criminal proceedings, also confiscate objects belonging to the perpetrator or participant which do not stem from the offence being tried but from other unlawful acts. This requires that a specific “connecting offence” has been proven, but not that it be shown which concrete offence the object stems from.
If the specific proceeds are no longer available, confiscation of value (§ 73c StGB) comes into consideration. In that case, no individual object is confiscated; instead, payment of a sum of money corresponding to the value of the proceeds is ordered. This value-based confiscation is of great practical importance, as it applies irrespective of whether the original assets are still present.
Confiscation from third parties and companies
A key particularity is confiscation from third parties (§ 73b StGB). Confiscation can be directed not only against the accused but also against persons who have obtained something from the offence.
This is especially relevant in the corporate context. If, for example, a managing director acts on behalf of a company and the economic benefit accrues to the company, confiscation can be ordered against the company as a third-party beneficiary. Criminal liability rests with the individual; the confiscation measure, however, targets the company’s assets. The company then participates in the criminal proceedings against the individual as a party affected by confiscation.
Seizure and securing of assets during the proceedings
Subsequent confiscation is often prepared in the investigation phase by means of securing measures. The central instrument is seizure of assets under §§ 111e ff. StPO, which serves to secure a potential confiscation order. Seizure may cover, in particular, bank accounts, real estate or other assets. It does not require a conviction, but only an initial suspicion and a legitimate interest in securing.
For those affected, seizure is often the most financially burdensome measure of the entire proceedings, as it frequently occurs early and is maintained for a long period – without a final judgment. The lawyers at Galen Rechtsanwälte examine the factual prerequisites for the seizure, its proportionality and the amount seized.
Confiscation in white-collar and tax criminal law – typical scenarios
Confiscation is of particular practical importance in white-collar and tax criminal law. In fraud, breach of trust, subsidy and investment fraud or in allegations of withholding and misappropriating wages, substantial asset values are often at stake. In tax criminal law, the decisive question is whether, and to what extent, an economic advantage was actually achieved through evaded taxes.
In addition, there is the option of independent confiscation (§ 76a StGB). Confiscation may be ordered – subject to the general requirements – even if no specific person can be prosecuted or convicted. In certain offences such as suspected money laundering, independent confiscation can even occur without proof of a specific underlying offence.
Defence against confiscation and seizure – counsel and representation by Galen Rechtsanwälte
The lawyers at Galen Rechtsanwälte advise and defend clients nationwide in white-collar criminal proceedings, including defence against arrest warrants and confiscation orders. We have extensive forensic experience in complex economic cases and in representing companies and their governing bodies.
In confiscation cases, defence focuses not only on the criminal assessment of the act itself, but also on the attribution of the act and the benefit, on the calculation of the amount and on securing measures during the investigation. The central question usually remains whether an unlawful act has actually occurred.
In business and corporate contexts, the attribution of the proceeds is often complex. It is particularly important to determine whether the property obtained is attributable to the acting natural person or to the company.
Even where confiscation is justified in principle, the amount is frequently disputed. Confiscation sums are often calculated too high, and recovered assets allocated incorrectly. The gross principle is of particular importance here. We examine whether the statutory requirements for disregarding expenses are actually met and whether the value of the proceeds has been correctly assessed.
In many cases, confiscation issues arise early in the investigation. The greatest practical risk often lies not in the conviction itself, but in the early securing measures. Seizure and confiscation can cause serious problems by reducing liquidity and significantly disrupting operations. We therefore review the prerequisites of §§ 111b ff. StPO at an early stage.
Where necessary, we make use of the available legal remedies in order to have seizure orders reviewed and to safeguard economic viability. The aim is not only to mitigate the ultimate confiscation but also to reduce the immediate economic impact of the proceedings.
We offer personal and individual consultations. Please feel free to contact us to arrange an appointment.
FAQs on confiscation in criminal proceedings
Confiscation is the legally regulated deprivation of assets derived from, or used for, an unlawful act. It is governed by §§ 73 ff. StGB and can take the form of confiscation of proceeds, confiscation of value or confiscation of tools and objects of the offence. Confiscation of value makes it possible to access assets even if specific objects are no longer available.
Yes. Even during the investigation, measures such as asset freezes and seizures can be ordered to secure later confiscation. These can affect bank accounts, real estate, vehicles or other assets and severely impair your or your company’s liquidity. Because such measures are often imposed early and maintained for a long time, they can be particularly onerous even before any conviction.
Confiscation may target the proceeds of the offence – i.e. what was obtained through the offence – as well as the means, products and objects of the offence. Where the proceeds cannot be seized, confiscation of their value may be ordered. In white-collar and tax cases, this often concerns saved expenses, for example from tax advantages.
Yes. Confiscation can also be ordered against third parties who have received proceeds of crime, for example if the offender or participant acted on their behalf or transferred the proceeds to them free of charge. They may then be involved in the confiscation proceedings as affected third parties. A typical example is when an offence is alleged to have been committed for the benefit of a company; in such cases, confiscation against the company is possible.
That is possible. If the proceeds cannot be confiscated, confiscation of value (§ 73c StGB) may be ordered. In this case, no specific object is seized; instead, a payment obligation in the amount of the value of the proceeds is imposed.
In confiscation proceedings, the concretely obtained assets are first identified, followed by an evaluative assessment under § 73d StGB. The gross principle means, in simplified terms, that expenses are generally not deducted when calculating the amount to be confiscated.
Yes. Under the conditions of independent confiscation (§ 76a StGB), confiscation may be ordered even if the underlying offence is statute-barred. In addition, special limitation rules apply to certain forms of confiscation which differ from the limitation periods for criminal prosecution.
Companies may be subject to confiscation even though they cannot themselves be perpetrators of a criminal offence. Confiscation is then directed against the company assets, while criminal proceedings are conducted against individuals. Regular points of contention include the attribution of proceeds, the distinction between company and private assets, and whether inflows actually remained with the company.
Remain calm, do not make any spontaneous statements about the matter, and contact a criminal defence lawyer immediately. Early legal review is essential to assess whether the legal conditions for seizure are met and whether the extent of the measure is lawful. The earlier the defence becomes involved, the better the chances of limiting financial losses – including where you are affected as a third party in confiscation proceedings.