Asset seizures can be permitted under German law for a wide variety of reasons, and can impact third parties and companies, and those accused of crimes. Knowing how to act in such situations is critical to challenging this action.
At Schlun & Elseven Rechtsanwälte, we offer comprehensive criminal defence and are your reliable legal assistance in times of crisis. We advise you on your rights, support you during interrogations, represent you in any legal disputes arising, and accompany you through the entire proceedings.
Asset Seizure under German Law
Under German criminal law, investigating authorities can be given extensive access to a person’s assets if they are suspected of illegal activity. Assets, in this case, refer to properties, bank accounts, securities, cars, jewellery and more. A bank account seizure under criminal law is based on a court order.
In subsequent court proceedings, the court decides on the asset seizure and whether it should continue. The seized assets are then transferred to the state until a decision is made. Should the court decide to continue the seizure, there is a significant threat of a loss of assets.
Law enforcement authorities can seize found cash based on a wide variety of regulations. The police can even issue a seizure order on the assumption of “imminent danger”.
Confiscation is outlined under German law between § 73 StGB and § 76 StGB, with § 73 StGB stating the following:
Confiscation of proceeds of crime from offenders and participants
- (1) If the offender or participant has obtained anything by or for an unlawful act, the court orders the confiscation of what was obtained.
- (2) If the offender or participant has derived any benefits from the proceeds, the court also orders the confiscation of the benefits.
- (3) The court may also order the confiscation of objects that the offender or participant has obtained
- 1. by way of sale of the object obtained or as compensation for its destruction, damage or confiscation or
- 2. on the basis of a right obtained.
Confiscation can continue in cases involving “independent confiscation” under § 76a StGB, whereby the assets can remain seized even if the person is acquitted. An extended confiscation is also permitted under § 73a (1) StGB. This provision is primarily used in organised crime cases.
Extended confiscation of proceeds of crime from offenders and participants
- (1) If an unlawful act has been committed, the court orders the confiscation of objects belonging to the offender or participant, even in cases where the objects were obtained by other unlawful acts or for such acts.
- (2) If the offender or participant participated in some other unlawful act prior to the confiscation having been ordered in accordance with subsection (1) and if a new decision is to be taken regarding the confiscation of objects belonging to the offender or participant, the court takes account of the order which has already been issued.
Asset seizure aims to prevent the financing of future offences and, generally, to demonstrate that crime doesn’t pay.
However, asset seizures need to happen in accordance with the law. At Schlun & Elseven Rechtsanwälte, our defence lawyers will examine whether this is the case and advise you regarding your legal options.
Asset Seizure: Third Parties and Companies
The consequences of asset seizure can also hit third parties and companies. The authorities can order seizures and asset freezes if there is suspicion of a criminal offence, particularly tax evasion. Such orders can be made at banks and involve assets suspected of originating from tax evasion. Other seizures can be applied to money deemed to have come from bribes.
Such seizures can have significant consequences for businesses and third parties, especially as they can apply in cases where they have no knowledge of the offence in question. Such an event can occur in circumstances whereby a company’s profits are seized as its employees committed crimes while conducting business.
The central idea is that those who have benefited from fraudulent and illegal activity cannot prevent confiscations and seizures due to transferring that profit to another party. However, such seizures need to occur according to the law, and it is not uncommon for authorities to act beyond their remit.
At Schlun & Elseven Rechtsanwälte, our criminal law defence team expertly advise and defend those affected at every stage of the legal proceedings.
Confiscation of Value: Legal Advice
Under German law (§ 73c StGB), the authorities are permitted to confiscate according to “value replacement”, whereby a person can have finances seized that equates to the value of the proceeds of the crime. It is outlined here:
Confiscation of value of proceeds of crime
If the confiscation of a particular object is impossible due to the nature of that which was obtained or for some other reason or because confiscation of a surrogate object has not been ordered as required by section 73 (3) or section 73b (3), the court orders the confiscation of a sum of money equal to the value of that which was obtained. The court also makes such an order in addition to confiscating an object to the extent that its value falls short of the value of that which was originally obtained.
Essentially, the authorities can confiscate money to the value of the original object if they can no longer find that object.
In such cases, working with a lawyer is vital, as the authorities attempt to seize money that likely originated from legal means. The accused can challenge such a step in court. For example, determining the value of the missing object can be difficult, especially in the case of rare objects. Authorities may overvalue it and seek to seize an excessive amount of money.
Remember that without the missing object, it can be challenging to prove that the accused obtained that object. Should the authorities not be able to prove that they were involved, there are no grounds for asset seizure.
This step is a serious encroachment on the rights of the person concerned; therefore, the accused needs to ensure that they have expert legal representation. Our lawyers will ensure that you are fully aware of your legal rights and advise you regarding remedies relating to the action.
Legal Defences with Asset Seizures
If you are facing an asset seizure, you need to use your “right to silence” and immediately contact a criminal defence lawyer. Our criminal defence lawyers have supported many clients in such cases and will provide you with the necessary support.
The investigating parties may pressure you into answering questions regarding the origin of the assets/cash in question. It cannot be stated often enough that remaining silent is your best option here. Wait for a lawyer to advise you. Even if you have an explanation for the money or assets, the investigating authorities are not likely to believe you.
Having assets and cash seized is not the same as an accusation of a crime, as such actions can impact third parties. Third parties can include the accused’s business partners and family members. Law enforcement authorities have significant powers during the time of seizure, and therefore it is best not to resist the seizure actively. Active resistance, especially physically resisting seizures, can lead to further legal consequences.
However, taking notes regarding their behaviour and what exactly they have taken is strongly recommended. The authorities do not have “free rein” regarding how they can act in such cases. Similarly, you need to know what exactly they are permitted to do. Therefore, if they come to your business premises or home, ask for their paperwork regarding what they are seizing.
The legal basis for the seizure must be precisely marked in the report. Documents, cash and other assets need to be clearly shown. Vague details, such as “account documents”, are not sufficient. Generally, do not offer additional information or sign anything without a defence lawyer present. You are entitled to legal representation, and acting too quickly can damage your case.
Our defence lawyers will advise you regarding your rights under German law. There are remedies provided under the legislation, and asset seizure is such a significant step that the authorities need to ensure it is carried out legally. Our team will examine the reasons for the asset seizure, whether the paperwork relating to the action is according to the legal provisions, and generally advise you regarding the following steps. Our team will ensure that you are fully aware of the opportunities and risks relating to a further course of action.
Practice Group: German Criminal Law
Practice Group:
German Criminal Law
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