Definition and legal nature of seizure (Arrest)
Seizure (Arrest) is a legal term from civil and criminal procedural law, which refers to a court order of a protective measure to temporarily secure monetary claims or certain movable objects. The purpose of seizure is essentially to secure a contractual claim, particularly when the future enforcement of a judgment would be jeopardized without such a measure. In Germany and Austria, the arrest constitutes an independent security procedure with a specific legal structure.
Seizure under German law
Civil procedural arrest
Purpose and types of arrest
In German civil procedure law, arrest is primarily governed by §§ 916 et seq. of the German Code of Civil Procedure (ZPO). It is a form of preliminary legal protection and is intended to secure the future enforcement of a private claim. Two main types are differentiated:
- Protective (Sicherungs-) arrest: Secures a monetary claim to prevent the debtor from transferring assets and thereby hindering later enforcement.
- Arrest to secure a claim for the delivery of a movable item or a specific object: Secures the creditor’s claim for delivery or provision of a specific object.
Requirements for the arrest
According to § 916 ZPO, two essential requirements must be examined:
- Arrest claim: The applicant must substantiate a substantive legal claim.
- Grounds for arrest: Risk that without immediate arrest order the claim will be frustrated or significantly impeded by the debtor.
A final conviction by the court is not required; rather, the substantiation may be provided by documents, sworn affidavits, or other evidence.
Procedure and execution
The arrest is ordered by the competent court upon application. It can be applied for before or during the main proceedings. The decision may be issued without an oral hearing (“in camera”), particularly in urgent cases. The court then issues an arrest order specifying the measure and its precise nature.
Enforcement usually takes place by attaching movable assets or by prohibitions on disposition with respect to certain objects or claims. The applicant must enforce the arrest within one month (from announcement or service of the arrest order); otherwise, the measure loses its effectiveness (§ 929 ZPO).
Remedies and protection of the respondent
The affected party may lodge an immediate complaint against the arrest order (§ 793 ZPO). In addition, the debtor may apply for the annulment or modification of the arrest, especially if the requirements change retrospectively.
The court can make the order of arrest contingent upon the provision of security, to compensate the other party for any damage resulting from an unjustified order.
Arrest in criminal procedure law
In criminal procedure law, arrest refers to a form of preliminary securing of assets (§§ 111b et seq. StPO). The aim is to secure the future confiscation of items, assets, or sums of money that are suspected to originate from a criminal offense or should have been used in the commission of a crime.
The measure may be ordered against the accused as well as third parties, and includes seizure, attachment, or entry in the land register. It is used especially for asset recovery and to secure possible fines or claims for value compensation.
Arrest in international and European law
European arrest warrant
The term “arrest” in the European legal area is applied in the context of the European Arrest Warrant. Although the focus here is primarily on deprivation of liberty (detention), comparable mechanisms for securing assets exist, for example via Regulation (EU) No 655/2014 establishing a European Account Preservation Order procedure.
Arrest under Austrian law
In Austria, the procedure for arrest is structured similarly to Germany and is governed by §§ 378 et seq. of the Enforcement Code (EO). It likewise serves to secure monetary claims and specific rights by judicial order before a judgment is issued or can be enforced in the main matter.
Arrest in Switzerland
Swiss law also recognizes arrest (Art. 271 et seq. SchKG) as an institutional measure for securing monetary claims, especially against debtors abroad, with some differing procedures and significance in cross-border matters.
Distinction from related protective measures
Arrest is primarily limited to monetary claims and claims for the delivery of specific items. In contrast, preliminary injunctions in civil procedure law generally secure other claims, such as for injunction, or the performance of an act. Attachment in summary proceedings or seizure in cases of imminent danger are further related but sometimes differing instruments.
Practical significance and application
Arrest is a key instrument for avoiding gaps in legal protection when there is a risk of asset shifting or destruction. It offers claimants a way to effectively secure their rights ahead of the main proceedings. Owing to its intense impact, the statutory requirements are interpreted strictly, and courts examine applications with particular care.
Legal consequences and termination of arrest
The arrest remains in force until it is lifted by the court, the main claim is settled, or the time limit expires (if not enforced). If the secured claim is finally dismissed, the arrest must be lifted. In cases of abusive enforcement, the opposing party who has been wrongly affected is entitled to claim damages from the applicant.
Further reading:
- Zöller, ZPO, current edition, § 916 ZPO
- MüKo, ZPO, §§ 916 et seq.
- Stein/Jonas, ZPO, Arrest and preliminary injunction
Further sources:
- <a href="https://www.gesetze-im-internet.de/zpo/916.html”>§§ 916 et seq. of the German Code of Civil Procedure (ZPO)
- <a href="https://www.gesetze-im-internet.de/stpo/111b.html”>§ 111b of the German Code of Criminal Procedure (StPO)
- Enforcement Code (Austria)
- <a href="https://www.fedlex.admin.ch/eli/cc/30/317321377/de”>Swiss Federal Act on Debt Enforcement and Bankruptcy (SchKG), Art. 271 et seq.
Frequently Asked Questions
What are the requirements for the issuance of an arrest?
Under German law, two main requirements must generally be met for the issuance of an arrest: the so-called arrest claim and the grounds for arrest. The arrest claim is the asserted claim that the arrest is intended to secure, such as a claim for payment. The grounds for arrest concern the need for security, i.e., a justified concern that without the arrest, enforcement of the court’s judgment might be frustrated or significantly complicated (§ 917 para. 2, § 936 ZPO). The applicant must demonstrate, for example, that asset shifting, refusal to pay, or concealment by the respondent is imminent. Evidence is typically provided by submitting documents, sworn affidavits, or witnesses. If both requirements are met, the court can order arrest based on a summary review.
What types of arrest exist in the German legal system?
German law principally distinguishes between property (dinglichen) arrest and personal (persönlichen) arrest (§ 916 et seq. ZPO). In the case of property arrest, the entire assets or certain assets of the respondent are “seized” to secure the claim, for example by garnishing accounts or placing a security mortgage on property. The aim is to prevent any changes in the debtor’s financial situation and to make later enforcement possible. Personal arrest, on the other hand, involves restricting the personal freedom of the debtor, but this is now only possible to a very limited extent since the German Constitution came into force and is rare in practice. It is now mainly applied in specific circumstances such as maintenance (alimony) law.
How long does arrest remain in effect and how can it be lifted?
An arrest generally remains in effect until either the underlying purpose of security ceases, the arrest is lifted through a final decision, or the principal proceedings are concluded. The arrest is of a provisional nature; if the underlying claim is not confirmed in the main proceedings, the affected party may apply for its lifting (§ 926 ZPO). At the debtor’s request, it is also possible to deposit or provide security which serves the purpose of the arrest, thereby leading to its lifting (§ 923 ZPO). Furthermore, § 942 ZPO provides for an immediate legal remedy against the arrest order, allowing appellate review.
What risks does the applicant for an arrest face?
The applicant bears the risk that the arrest may subsequently prove to be unjustified. In such cases, § 945 ZPO requires the applicant to compensate the respondent for any damage arising from the enforcement of the arrest. This applies regardless of the applicant’s fault, so even an objectively unjustified security measure can give rise to liability for damages. Liability also includes losses from depreciation in value, business disruptions, or reputation damage to the respondent. Therefore, care in preparing the application and careful examination of the requirements for arrest is essential for the applicant.
How does the arrest procedure work?
The arrest procedure is fundamentally designed as a preliminary legal protection process and is characterized by particular urgency. The application for arrest may be made in writing or orally recorded at the court registry (§ 922 ZPO). The court reviews, by way of summary (i.e., preliminary) consideration of the facts and legal situation, whether the requirements for arrest have been substantiated. The decision can be made without prior hearing of the respondent by way of an “arrest order without oral hearing,” to preserve the element of surprise (§ 922 para. 1 sent. 1 ZPO). Once ordered, the arrest order must be served on the respondent; thereafter, the arrest must be executed promptly, usually within one month (§ 929 para. 2 ZPO).
How does arrest differ from other protective measures, in particular from a preliminary injunction?
Arrest is primarily intended to secure proprietary claims, particularly monetary claims, while the preliminary injunction mainly aims to secure claims not concerning money, such as for injunction, delivery, or specific acts (§ 935 et seq. ZPO). Both instruments are similar in terms of urgency, summary examination, and availability of legal remedies. In contrast to a preliminary injunction, arrest generally does not require a claim for disposition but rather an arrest claim and specific grounds for arrest. Additionally, arrest permits more comprehensive securing of assets, which is especially crucial in situations of imminent asset transfer.
What costs are associated with the arrest?
The costs of arrest proceedings consist of court fees, expenses, and legal fees. As a rule, court fees are calculated according to the value of the arrest claim based on the Court Costs Act (GKG). Added to this are expenses for the enforcement of the arrest, such as fees for the court bailiff, and any securities that must be deposited (e.g., surety bonds). In the event of an unjustified arrest order, the applicant may also face considerable additional costs due to claims for damages. If the applicant is successful, the losing party generally bears the costs of the proceedings, with judicial decisions being made as part of the cost assessment process (§ 91 ZPO).
