The legal institution of confiscation denotes a legal consequence in the criminal law of Germany . It can either serve to skim off the proceeds of the crime, have a criminal-like character or only serve to ward off a danger.
The proceeds of crime (e.g. income from drug trafficking) are subject to confiscation (until June 30, 2017, they were subject to forfeiture ). If others have suffered financial loss as a result of the execution of the offense, for example in the case of fraud, any victim compensation will only be paid in the execution proceedings. If the secured assets or the proceeds from the sale of the secured assets are not sufficient to fully settle all claims of the injured party, there is a deficiency. Victims are then compensated in accordance with Section 111i StPO in insolvency proceedings.
In addition, the confiscation is applied to the means of the crime (e.g. tools) as well as objects that were produced by the crime itself, e.g. B. counterfeit money and forged documents (crime products), subject to special regulations also to objects to which the crime relates ( objects of crime , e.g. illegally owned weapons). It is intended to ensure that the perpetrator is no longer in possession of the criminal material and that further handling of it (e.g. a motor vehicle in which a person has driven without a driver's license) is prevented.
The general prerequisites for the criminal legal consequence of confiscation are regulated in the Criminal Code of Germany (StGB) in the third section Legal Consequences of the Act in the seventh title of confiscation , from § 73 StGB. A distinction must be made between two groups of cases when it comes to the confiscation of crime, products and objects. It is not a single legal institution.
The prerequisite for confiscation is the presence of an “intentional criminal offense” ( Section 74 of the Criminal Code) in the first (criminal-like) case group . What is meant by this is an act committed intentionally , unlawfully and culpably .
The second (similar to measures) case group of confiscation is used when it comes to objects that can endanger the general public or that will serve to commit further illegal acts. An unlawful act that was committed in a state of incapacity is sufficient for confiscation (Section 74b of the Criminal Code). The latter is examined by the court in an independent collection procedure at the request of the public prosecutor or the private plaintiff (Section 76a of the Criminal Code).
The (final) confiscation may only be ordered by a decision ( decision or judgment ) by a court . The public prosecutor's office and its investigators can, however, confiscate such items in the event of imminent danger in preparation for confiscation. These measures can be enforced by means of direct coercion . In anticipation of the legal proceedings, they are a measure taken by the law enforcement authorities to secure the proceedings ( seizure or seizure to ensure enforcement according to Sections 111b et seq. StPO).
If tax evasion , a spell breach or tax stealing has been committed, the products, goods and other things to which the evasion of excise tax or import and export duties the ban breach or tax stealing relates and the means of transport that were used for the act can be used are to be withdrawn ( Section 375 AO).
- ↑ Victim compensation
- ↑ Karl Lackner in: Lackner / Kühl, StGB, 28th edition 2014, § 74 Rn. 1.