The term is not always used consistently in German law.
Criminal procedural seizure
In criminal procedure referred seizure only forced ensure . It is regulated in And StPO . Criminal procedural seizure can capture possible evidence , as well as items that are subject to forfeiture or confiscation . It presupposes that the object cannot otherwise come into the possession of the authority, which is particularly the case if the surrender is refused. If a simple seizure is sufficient, seizure as an act of intervention is not necessary in the sense of the principle of proportionality . In principle, the order of a seizure is subject to a judge's reservation , i. H. only in the case of imminent danger may it be ordered by a public prosecutor or an investigator from the public prosecutor's office instead of a judge . In this case, according to (2) StPO, if the person concerned objects, the judicial decision should be made up for within three days. The implementation of a seizure on the orders of a judge is possible every law enforcement officials. According to Code of Criminal Procedure, seizure of certain objects is not permitted. This includes, in particular, written communications between the accused and persons authorized to refuse to testify and, in principle, records of such confidants if they are in their possession. Specifically, for example, the attorney's files or medical histories are so-called confiscation-free items. A security protocol or directory is to be handed over to the person concerned on request. The confiscated items must be returned as soon as they are no longer required for the procedure. The surrender has to be made to the person concerned.
Except in Baden-Württemberg ( PolG BW), Rhineland-Palatinate and Saxony , the police laws of the federal states do not differentiate between confiscation and seizure, but regulate both the compulsory and the informal detention of objects under the term “seizure”. The authority norm for this exists according to all police laws,
- if this is necessary to avert danger ,
- to protect the rightful owner or owner from loss or damage or
- to prevent misuse.
The items are to be returned if the reason for the security no longer applies. In contrast to criminal procedural law, there is no judicial reservation in police law, nor is there any provision for an automatic judicial review; the judicial review of legality takes place on application.
Seizure in enforcement law
The seizure in enforcement proceedings is intended to ensure the success of the proceedings by preventing the enforcement debtor from having harmful access to the object of the seizure. It is a factual or legal act by an enforcement body that makes it clear to the outside that the object of confiscation is subject to the entanglement . Confiscation is to be classified as an administrative act . As a rule, however, it cannot be challenged separately.
Depending on the confiscated item, the seizure takes place differently:
- In the case of movable property , the bailiff takes the matter into custody , or a pledge seal is stuck on. The custody of the enforcement debtor is a prerequisite for the seizure.
- The seizure of a property or the same property (e.g. condominium ) in foreclosure or administrative proceedings is carried out by the enforcement court . It is through the delivery of the issuing decision to the owner or by the receipt of the registration request of the executing Merks the Land Registry effective. The requirement is the property of the enforcement debtor. The same applies to ships that are entered in the shipping register.
- In the case of foreclosure in claims, the seizure (entanglement) takes place through the delivery of the judicial attachment order to the third party debtor .
With the seizure, the item can only be sold under certain circumstances: There is a relative ban on sale ( BGB ), which works in favor of the creditors. A sale is therefore subject to the approval of the obligee in accordance with (1) BGB. Acquisition in good faith by a third party is generally ruled out because the seizure is externally visible. A property can only be acquired in good faith if the prohibition on sale is not known (in practice this means before the registration request is received). In the case of a movable property, the buyer in good faith (Austria: buyer in good faith from the unauthorized person ) only protects ignorance that was not grossly negligent (example: the pledge seal was illegally removed and there was no reason to doubt the seller's right of disposal). Other rights such as claims cannot be acquired in good faith.
- Tido Park: Search and Seizure: Legal Basis, Requirements and Limits. 2nd Edition. CH Beck, Munich 2009, ISBN 978-3-406-59564-6