Preventive profit skimming

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The preventive profit skimming (PräGe) is a police-law term and a measure to secure objects and cash by the police and regulatory authorities .

Objects that have almost certainly resulted from criminal offenses or are connected with criminal offenses, but which cannot be assigned to a specific criminal offense of the accused, are neither subject to forfeiture nor to confiscation under the Criminal Code .

The preventive profit skimming serves to skim off such obviously criminal profits in order to

  1. To safeguard the property rights of entitled persons - including those of persons who lawfully exercise actual power - beyond the criminal investigation procedure ("property protection" , for example § 26 No. 2 Nds. SOG) and / or
  2. To remove things from the "criminal cycle".

Objects in the form of stolen goods are under 2 .; Cash amounts in relation to, for example, drug trafficking , illegal cigarette trafficking or grandchildren trick fraud ( "Defense against a current danger" , for example § 26 No. 1 Nds. SOG).

The proceeds of the seized items (items) or the cash immediately seized go to the tax authorities (depending on the federal, state, local authority area of ​​responsibility ), provided that after the statutory deadlines no owner or other authorized person can be determined and / or the items are for defense a current danger.

Origin and implementation

The PräGe was first tested in 2003 as an Osnabrück model in consultation between the Osnabrück public prosecutor , the Osnabrück city administration and the Osnabrück city police station. In addition to the state of Lower Saxony , the states of Rhineland-Palatinate , Berlin , Hesse , North Rhine-Westphalia , Saxony , Schleswig-Holstein and Thuringia also practice preventive profit skimming on the basis of police laws.

Before practicing the embossing, the following must be observed in particular:

Consider alternatively:

  • Security deposit in accordance with Section 7a of the Asylum Seekers Benefits Act (AsylbLG),
  • Profit skimming through taxation.

Legal bases

Securing ( e.g. § 26 Nos. 1, 2 Nds. SOG ), safekeeping ( e.g. § 27 Nds. SOG), surrender or non-release ( e.g. § 29 Nds. SOG) and, if necessary, recovery ( e.g. § 28 Nds . SOG) according to the hazard prevention laws of the federal government (federal police law, conditionally BKA law) and the federal states ( security and regulatory laws , police laws , police duties laws , etc.) prior to criminal procedural surrender of objects ( objects, cash ) by the police or administration - or regulatory authorities or similar.

Decision of the Federal Constitutional Court (BVerfG) as an orientation

In its resolution - 2 BvR 564/95 - of January 14, 2004 on Section 73d of the Criminal Code ("Extended decay is compatible with the Basic Law"), the BVerfG has set itself preventive-regulating goals that can also serve as an orientation for the PräGe concerned and u. a. decided:

  • The legislature sees in the profit skimming not the addition of an evil, but the removal of an advantage, the whereabouts of which could lure the perpetrator to further acts. ... (paragraph 65)
  • ... However, the corrective intervention with which the state reacts to a criminally arisen asset situation is not necessarily repressive. Public hazard prevention law also allows sovereign measures to eliminate disruptions. Avoidance of danger does not end where a regulation has been violated and a disruption of public safety has been caused as a result. It also includes the task of preventing the disorder from continuing (...). (Paragraph 68)

Administrative court decisions (2nd instance)

  • Decision VGH Baden-Württemberg, Az. 1 S 1710/01, of February 20, 2002; Lower instance : Judgment VG Karlsruhe, Az. 9 K 2018/99, from May 10, 2001 (seizure of approx. 2,000 objects with an estimated total value of 250,000.00 DM),
  • Decision OVG Berlin, Az. OVG 1 N 13.00 / VG 1 A 173.98, dated September 16, 2002; Lower court : judgment VG Berlin, Az.VG 1 A 173.98, dated February 2, 2002 (seizure of DM 155,000.00 in cash),
  • Decision Nds. OVG (Lüneburg), Az. 11 PA 391/07 / 1 A 19/07, from January 14, 2008; Lower court : Decision VG Stade, Az. 1 A 19/07, dated August 31, 2007 (ensuring a large number of identical items - application for approval of legal aid / PKH),
  • Decision Nds. OVG (Lüneburg), Az. 11 LA 133/08 / 1 A 19/07, from May 13, 2008; Lower court : Judgment VG Stade, Az. 1 A 19/07, from February 25, 2008 (securing a large number of identical items),
  • Judgment Nds. OVG (Lüneburg), Az. 11 LC 4/08, from July 2, 2009; Lower court : judgment VG Osnabrück, Az. 4 A 149/06, of November 8, 2007 (seizure of 27,280.00 euros in cash),
  • Decision OVG NRW (Münster), Az. 5 A 298/09, from August 11, 2010; Lower court : judgment VG Düsseldorf, Az. 18 K 4188/08, dated December 10, 2008 (seizure of 11 140.00 euros in cash; revision is not permitted),
  • Judgment Nds. OVG (Lüneburg), Az. 11 LB 401/09, from November 17, 2009; Lower court : Judgment VG Braunschweig, Az. 5 A 251/07, from May 29, 2008 (seizure of 12,328.13 euros in cash; suspected illegal arms deals),
  • Decision Nds. OVG (Lüneburg), Az. 11 LA 574/09, from September 29, 2010; Lower court : Judgment VG Stade, Az. 1 A 1504/08, dated November 17, 2009 (guarantee of a sum of money of EUR 27,000.00; decision is final)
  • Decision Bay. VGH, Az. 10 ZB 10.1707, from November 19, 2010; Lower court : judgment in Bay. VG Würzburg, Az. W 5 K 09.963, dated June 2, 2010 (seizure of various items),
  • Pending decision OVG Berlin-Brandenburg, Az. OVG 1 B 19.08; Lower court : Judgment VG Berlin, Az. VG 1 A 137.06, dated February 28, 2008 (securing approx. 100,000.00 euros in cash - "Police may secure money for drug purchase despite acquittal in criminal proceedings") Note : In this context, the BVerfG resolution, Az. 2 BvR 2225/08, dated July 2, 2009 ("Evidence can also be used after an unlawful house search").

literature

  • Barthel, Torsten F .: Preventive profit skimming as a new task of the municipal regulatory authorities, in: KommJur 3/2009, p. 81 ff.
  • Hüls, Silke / Reichling, Tilman: Asset Recovery Before and After the Criminal Judgment - "Declarations of Waiver" and the Instrumentalization of Hazard Defense Law, in: Strafverteidiger Forum (StraFo) 5/2009, pp. 198 ff.
  • Hunsicker, Ernst: Preventive profit skimming (PräGe) in theory and practice - securing, custody and recycling of objects and (cash) money for reasons of hazard prevention in cooperation with the police, public prosecutor and municipality (Osnabrück model) , 3rd revised. & exp. Edition, Verlag für Polizeiwissenschaft, Frankfurt / Main 2008, ISBN 978-3-935979-55-9
  • Hunsicker, Ernst: Preventive profit skimming (PräGe) - collection of decisions in full texts (anthology) , 2nd revised. & exp. Edition, GRIN Verlag, Munich / Ravensburg 2009, ISBN 978-3-638-92733-8
  • Hunsicker, Ernst: Constitutionality of the preventive profit skimming (PräGe) - Assessment of the constitutionality including the BVerfG decision on extended forfeiture ( Section 73d StGB) and the relevant case law (PräGe) , GRIN Verlag, Munich / Ravensburg 2009, ISBN 978-3- 64033137-6
  • Hunsicker, Ernst: Country comparison: Preventive profit skimming (PräGe) - legal bases, case law, development and status in Germany - comparable legal bases in Austria and Switzerland? , GRIN Verlag, Munich / Ravensburg 2009, ISBN 978-3-640-47339-7
  • Rohde, Thomas / Schäfer, Thomas: Preventive profit skimming - safeguarding according to hazard prevention law in the context of the Osnabrück model, in: NdsVBl. 2/2010, p. 41 ff.
  • Thiee, Philipp: "Preventive profit skimming": When police officers play corner lawyers, in: Strafverteidiger (StV) 2/2009, p. 102 ff.

Web links

Individual evidence

  1. ↑ Preventive profit skimming Small request from MPs Marlies Kohnle-Gros (CDU) and answer from the Ministry of the Interior and for Sport. State Parliament of Rhineland-Palatinate, printed matter 15/1624 of October 31, 2007
  2. ↑ http://www.bundesverfassungsgericht.de/entscheidungen/rs20040114_2bvr056495.html
  3. ↑ http://www.dbovg.niedersachsen.de/Entscheid.asp?Ind=05000200800000411%20LC%5B02%5D
  4. ↑ http://www.berlin.de/sen/justiz/gerichte/vg/presse/archiv/20080402.1000.97361.html
  5. ↑ http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg09-085.html