In recent years, the confiscation of assets in criminal proceedings has evolved from a "side issue" to a distinct area of risk. Since the 2017 reform, confiscation under Sections 73 et seq. of the German Criminal Code (StGB) is regularly ordered in practice and often secured during the preliminary investigation, particularly through asset seizures. For those affected, the resulting financial consequences can be more severe in individual cases than the actual threat of punishment. Furthermore, confiscation measures are not limited to defendants. Third parties can also be targeted, even if they are not the subject of any criminal charges.
Especially in economic and tax criminal law, the right of confiscation is therefore highly relevant. In fraud proceedings (§ 263 StGB) and embezzlement proceedings (§ 266 StGB), in cases of subsidy fraud (§ 264 StGB) or loan fraud (§ 265b StGB), in proceedings for withholding and misappropriating wages (§ 266a StGB) as well as in tax criminal situations (§§ 370 ff. AO), the question "What is the potential for asset confiscation?" is regularly among the first and most important questions from clients.
Asset confiscation pursuant to Sections 73 et seq. of the German Criminal Code – Principles of confiscation
Asset confiscation is regulated in Sections 73 et seq. of the German Criminal Code (StGB) and follows the legislative principle that criminal offenses should not be economically rewarding. The aim is to confiscate what was obtained "through" or "for" an unlawful act.
The central concept is that of "obtained property." Obtained property encompasses everything that has actually accrued to the perpetrator's assets through or as a result of the offense. This includes all economically measurable benefits. In confiscation proceedings, the tangible obtained property is first determined. Subsequently, an evaluative assessment is conducted in accordance with Section 73d of the German Criminal Code (StGB). According to the gross principle, consideration received or expenses are generally not deductible.
The 2017 reform of criminal asset forfeiture systematically reorganized and significantly strengthened confiscation. Since then, it is generally mandatory if the legal requirements are met.
Confiscation of proceeds of crime and compensation for value – What can be confiscated?
The core aspect of asset confiscation is the seizure of proceeds of crime pursuant to Section 73 of the German Criminal Code (StGB). Proceeds of crime are assets acquired by the perpetrator or accomplice. through the The act has been carried out. This includes monetary payments, claims, saved expenses, or other economic advantages.
According to Section 73a of the German Criminal Code (StGB), the court may, within the framework of ongoing criminal proceedings, also confiscate objects belonging to the perpetrator or accomplice that do not originate from the offense being prosecuted, but from other unlawful acts. The prerequisite is, firstly, that a specific unlawful act – the so-called connecting offense – has been proven; however, proof of which specific other offense the object originates from is not required.
If, for example, the specific proceeds of crime are no longer available, the confiscation of the value of the proceeds of crime pursuant to Section 73c of the German Criminal Code (StGB) may be considered. In this case, no specific object is confiscated; instead, the confiscation of a sum of money equal to the value of the proceeds is ordered. This confiscation of equivalent value is of considerable practical importance, as it applies regardless of the current existence of individual assets.
Collection from third parties and companies
A key differentiating feature in confiscation law is confiscation from third parties pursuant to Section 73b of the German Criminal Code (StGB). Asset forfeiture can be directed not only against the accused, but also against persons who have obtained something from the crime.
This is particularly relevant in a corporate context. If, for example, a managing director acts on behalf of a company and the economic benefit accrues to the company, confiscation of assets can be ordered against the company as a third-party beneficiary. Criminal liability then lies with the individual, while the asset forfeiture affects the company's assets. The company can then participate in the criminal proceedings against the individual as a so-called party subject to confiscation.
Asset seizure and confiscation during criminal proceedings
The subsequent confiscation of assets is often prepared during the preliminary investigation through protective measures. The central instrument is the seizure of assets pursuant to Sections 111e et seq. of the German Code of Criminal Procedure (StPO). This serves to secure a potential confiscation order. A seizure of assets can, in particular, encompass accounts, real estate, or other assets. These measures do not require a conviction but are based on an initial suspicion and a legitimate interest in securing the assets.
For those affected, the seizure of assets is often the most financially damaging intervention of the entire investigation, because it frequently occurs early in the proceedings and is often maintained for a long time – without a verdict in the case. The lawyers at Galen Rechtsanwälte review the factual prerequisites for the seizure order, its proportionality, and the specific amount of the secured sum.
Confiscation in economic and tax criminal law – Typical scenarios
Asset confiscation is of particular practical importance in economic and tax criminal law. In cases of fraud, embezzlement, subsidy or investment fraud, as well as allegations of withholding and misappropriating wages, substantial assets are regularly at stake. In tax criminal law, the key question is whether and to what extent an economic advantage was actually gained through the unpaid taxes.
Furthermore, there is the possibility of independent confiscation under Section 76a of the German Criminal Code (StGB). Confiscation can also occur, subject to the other requirements for confiscation, even if no specific person can be prosecuted or convicted. In certain offenses, such as suspected money laundering, independent confiscation can even occur without proof of a specific unlawful act.
Defense against confiscation and seizure measures – your legal advice and representation by Galen Lawyers
The lawyers at Galen Rechtsanwälte advise and defend clients nationwide in white-collar crime cases, including those against arrest warrants and confiscation orders. We have extensive forensic experience in complex economic proceedings and in representing companies and their governing bodies.
In confiscation law, defense aims not only at the criminal assessment of the act itself, but also at the attribution of the act and the benefit, the calculation of the amount, and the security measures in the investigation proceedings. The central question usually remains whether an unlawful act has actually occurred.
Especially in a business and corporate context, the attribution of what has been obtained is complex. It is particularly important to distinguish whether what has been obtained is attributable to the acting natural person or to the company.
Even if confiscation is justified in principle, the amount is often disputed. Confiscation amounts are frequently calculated too high, and the recovered assets are incorrectly allocated. The gross principle is of particular importance in this context. We examine whether the legal prerequisites for disregarding expenses are actually met and whether the value of the recovered assets has been correctly assessed.
In many cases, the question of confiscation arises early in the investigation. The greatest practical risk therefore does not lie in the verdict itself., but rather in the security measures ordered at an early stage. Asset seizure and confiscation pose significant problems in practice because they can reduce the company's liquidity and considerably disrupt operations. We therefore examine the prerequisites of Sections 111b et seq. of the German Code of Criminal Procedure (StPO) at an early stage.
Where necessary, we utilize the available legal remedies to have seizure orders reviewed and to safeguard economic viability. The aim is not only to mitigate the material issue of 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 schedule an appointment.
Confiscation is the legally regulated seizure of assets derived from or used in the commission of an unlawful act. It is governed by Sections 73 et seq. of the German Criminal Code (StGB) and can take the form of confiscation of proceeds of crime, of substitute value, or of the confiscation of instruments and objects of crime. The possibility of confiscation of substitute value allows confiscation to be economically effective even if a specific asset is no longer available.
Yes. Even during the preliminary investigation, measures to secure later confiscation can be ordered, such as asset freezes. This can affect accounts, real estate, vehicles, or other assets and significantly impair your liquidity or that of your company. Because these measures are often implemented early in the investigation and maintained for a long time, they can be particularly damaging even before a conviction.
The proceeds of a crime, i.e., what was obtained through a crime, as well as the means, products, and objects of the crime, can be confiscated. In the case of proceeds of a crime, compensation for their value can also be ordered if the proceeds are no longer available. In economic and tax criminal law, this often involves the confiscation of saved expenses, e.g., from tax advantages.
Yes. Confiscation orders can also be issued against third parties if they have received proceeds of crime. This is the case, for example, if the perpetrator or accomplice acted on their behalf or if the proceeds were transferred to them free of charge. They can then be included in the confiscation proceedings as parties involved. A typical example is when a crime is alleged to have been committed for the benefit of a company. In such cases, confiscation against the company is a possibility.
That is possible. If the proceeds cannot be confiscated, the confiscation of their value can be ordered under Section 73c of the German Criminal Code. In that case, it is not about taking an actual object, but about paying a sum of money.
In confiscation proceedings, the tangible assets obtained are first determined. This is followed by an evaluative assessment pursuant to Section 73d of the German Criminal Code (StGB). The gross principle applies in this assessment. In simplified terms, this means that actual expenses incurred are often not deducted when determining the amount to be confiscated.
Under the conditions for independent confiscation, confiscation can also occur even if the underlying offense is time-barred. Furthermore, special statutes of limitations apply to certain forms of confiscation, which are distinct from the statute of limitations for criminal prosecution.
Companies can be subject to confiscation even if they themselves cannot be the "perpetrators" of a crime. In such cases, the confiscation is directed against the company, while the criminal proceedings are conducted against individuals. Points of contention regularly include the attribution of the proceeds, the separation of company and private assets, and whether inflows actually remained with the company. It is also relevant in practice that measures to seize company assets can significantly impair the company's operational capacity.
Stay calm, do not make any hasty statements about the matter, and contact a criminal defense attorney. It is crucial to have a lawyer review the case early to determine whether the conditions for the seizure measure are met and whether its scope has been correctly assessed. The sooner the defense begins, the better the chances of limiting financial losses. This also applies if you are affected by confiscation proceedings.