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.