Independent collection procedure (Germany)
The independent confiscation procedure enables confiscation to be ordered as a legal consequence outside of criminal proceedings. The procedure was newly regulated with effect from July 1, 2017 in Section 435 StPO (previously Section 440 StPO old version). The new regulation serves to implement the EU directive on the seizure and confiscation of instrumentalities and proceeds from criminal offenses in the European Union.
admissibility
Section 76a of the Criminal Code governs the conditions under which independent confiscation is permitted . With the reform of the confiscation law of July 1, 2017, the facts were expanded significantly in order to close several legal loopholes.
Paragraph 1 standardizes cases in which no specific person can be convicted or prosecuted for the offense. This is the case, for example, if the perpetrator cannot be identified or several people in question cannot clarify who is responsible for the crime. This also applies to the case of incapacity . Since the reform, with which the restriction to "factual reasons" no longer exists, the presence of a legal obstacle to prosecution, such as permanent incapacity to stand trial or a criminal complaint with regard to the original offense , can also lead to the admissibility of the independent confiscation procedure. However, cases are expressly not covered by this provision in which the act cannot be prosecuted because there is no application , authorization or request for a penalty or a legally binding decision on confiscation has already been made; these cases stand in the way of independent confiscation. The prerequisites for confiscation must otherwise be met, the unlawful act must be proven and no obstacle to prosecution such as B. commencement of the statute of limitations.
Paragraph 2 relates to cases in which the perpetrator or a third party has obtained a specific financial advantage from the act or in which it is a security forfeiture ( § 74b , § 74d StGB) and the prosecution of the offense fails because the prosecution statute of limitations has expired . These are cases in which the perpetrator or the participant is determined after the result of the investigation (unlike in paragraph 1) and only the statute of limitations precludes a conviction of the perpetrator or the participant. In such cases, the collection can be ordered in the independent collection procedure.
Paragraph 3 extends the scope of paragraph 1 to those cases in which the court refrains from imposing a penalty or the public prosecutor's office discontinues the investigation on grounds of insignificance ( Section 153 of the Code of Criminal Procedure).
Paragraph 4 was newly introduced with the 2017 reform. This offense includes cases in which people are found at the airport or at the border with objects that the court is convinced that they originate from a criminal offense. Concrete proof of an illegal act in such cases is usually difficult or even impossible due to the foreign connection. The prerequisite is the suspicion of one of the catalog offenses listed in the law. The circumstances on which the court may base such a suspicion is regulated in Section 437 of the Code of Criminal Procedure. Since the regulation is a target regulation, the court has the discretion to refrain from confiscation in exceptional cases.
Process requirements
The independent collection procedure requires a separate application from the public prosecutor or the private plaintiff according to § 435 StPO. An order for confiscation as part of a security procedure is not permitted. The public prosecutor's office has discretion when filing an application; In particular, it can refrain from submitting an application if the procedure would require a disproportionate effort.
Otherwise, the procedural rules for confiscation also apply mutatis mutandis to the independent collection procedure.
Individual evidence
- ↑ cf. BGH, judgment of June 12, 2008 - 4 StR 140/08
- ^ Draft law of the federal government to reform the criminal asset recovery BT-Drs. 18/9525 of September 5, 2016
- ↑ Law on the reform of the criminal asset recovery of April 13, 2017 ( Federal Law Gazette I p. 872 )
- ↑ Directive 2014/42 / EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and the proceeds from criminal offenses in the European Union OJ. L 127/39 of April 29, 2014
- ↑ Wiebke Reitemeier: The reform of the criminal asset recovery ZJJ 2017, pp. 354–364
