Extended decay

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The Advanced decline was a measure of German criminal law , which in § 73d Penal Code was controlled (SCC). Through the law on the reform of the criminal asset recovery , the separate regulations of the forfeiture on July 1, 2017 in German criminal law were abolished and merged with the regulations of confiscation .

Essence of the measure

In the context of the so-called forfeiture , a court could, in the case of particularly serious offenses and if this was provided for in the legal norm, order that objects belonging to a perpetrator or participant in a criminal act become the property of the state if, under the circumstances, it was to be assumed that the objects were for the offense to be judged should be used or originate from or have been obtained from this offense. According to Section 73a of the Criminal Code, instead of forfeiture, a corresponding sum of money from the assets of the perpetrator or participant could forfeit the state if the thing itself was not suitable for forfeiture for legal or factual reasons.

The extended forfeiture allowed the confiscation of objects even if they did not originate from the criminal offense to be judged but from other illegal acts. The Federal Court of Justice placed high demands on the evidence and decided that the order of extended forfeiture under Section 73d of the Criminal Code would only be considered if the judge had, on the basis of exhaustive gathering and assessment of evidence, gained the unqualified conviction that the defendant covered the order Obtained objects from illegal acts without these having to be ascertained in detail.

development

This regulation met with concerns about the principle of guilt in criminal law, whereupon the Federal Constitutional Court ruled in January 2004:

  1. The extended forfeiture ( § 73d StGB) does not pursue repressive-retaliatory, but preventive-regulating goals and is therefore not a punishable measure subject to the principle of guilt.
  2. Section 73d of the Criminal Codedoes notviolate the presumption of innocence .

The order of extended forfeiture is therefore also permissible before a final conviction.

However, the BVerfG also found that the extended expiry of Section 73d StGB lacked a safeguard clause according to which claims for compensation by third parties, in particular the victims of the criminal offenses, were missing, as contained in the expiry of Section 73 StGB. This could lead to the undesirable result that the victim could no longer be compensated by the perpetrator because his property had already been confiscated by the state before the conviction provided the basis for claiming damages. The legislature complied with this through an amendment to the StGB in 2007, since Section 73d of the Criminal Code has since contained a reference to Section 73 (1) sentence 2 of the Criminal Code.

In 2011, the BGH dealt with the issue again and found, with regard to the relationship between forfeiture and extended forfeiture, that extended forfeiture can also be considered if the origin of an item from an illegal act can be proven but cannot be clearly established whether from the act to be judged in the process. Accordingly, the extended forfeiture is subsidiary to the forfeiture and is not exclusive to it.

Procedural requirements

The provisions of § 111b to § 111n StPO applied accordingly for the extended expiry . Thereafter, the public prosecutor was responsible for the formal seizure of the objects or the sum of money . The judge had authority to issue orders, and in the case of imminent danger also the public prosecutor and their investigators, the latter only insofar as movable property (and thus money) were involved.

Examples

Examples of crimes that could be extended forfeiture:

The most common application, however, was the narcotics law according to § 33 BtMG. In the case of a person convicted of trafficking in 16 kg of marijuana , the Federal Court of Justice ruled that property in Spain could expire in favor of the local state.

Web links

Individual evidence

  1. ↑ Law on the reform of the criminal asset recovery : text, amendments, reasons
  2. ↑ BGHSt 40, 371.
  3. ↑ Unless otherwise stated, this chapter is based on Nina Nestler: On the scope of § 73d StGB: The extended decay before new legitimation deficits? at hrr-strafrecht.de
  4. ↑ Federal Constitutional Court, decision of the Second Senate of January 14, 2004 - 2 BvR 564/95 - , BVerfGE 110, 1 .
  5. ↑ BGH BeckRS 2011, 19724 = HRRS 2011, No. 754.
  6. ^ BGH, decision of May 3, 2000 , Az. 1 StR 125/00, full text.