Concept and fundamentals of asset seizure
Die Asset seizure refers under German law to the state-ordered securing, confiscation, or other disposition of assets belonging to a natural or legal person. It generally serves to secure criminal proceedings, enforce claims, or prevent the transfer of valuable items. The measure can be ordered in both criminal and civil contexts and constitutes an important instrument for safeguarding public claims or avoiding asset transfers.
Legal foundations of asset seizure
Criminal procedural asset seizure
In criminal law, asset seizure is centrally regulated in §§ 111b to 111k StPO (Code of Criminal Procedure). The measure serves to secure the subsequent confiscation of proceeds of crime, instruments used or their substitutes (§§ 73 et seq. StGB) as well as to ensure state access to assets from potential criminal offenses.
Safeguarding asset recovery
According to the regulations on asset recovery, objects acquired through or for a crime can be seized. This also applies to assets whose lawful origin cannot be proven and are presumed to be derived from crime. Seizure secures later access by the state.
Preventive and compulsory seizure
A distinction is made between:
- Preventive seizure: Serves to secure enforcement against assets, enabling subsequent confiscation.
- Compulsory seizure: Becomes relevant in the context of enforcing a foreign decision or executing substitute custodial sentences.
Civil law asset seizure
In civil law, assets can be attached and seized in the course of enforcement proceedings pursuant to §§ 808 to 863 ZPO (Code of Civil Procedure). The aim here is to satisfy an enforceable claim, for example from a final judgment.
Administrative and regulatory seizure
Asset seizure is also possible under public safety law, for instance through orders by the police and regulatory authorities if assets pose a significant threat to public security.
Process and procedure of asset seizure
Order and implementation
The order for asset seizure is usually issued by the competent court upon application by the public prosecutor or an enforcement authority. The affected person is given the opportunity to respond, unless an immediate measure is necessary.
Safeguarding measures
Typical measures are:
- Attachment of account balances (account garnishment)
- Entering a restraint in the land register for real estate assets
- Seizure of cash, securities, jewelry, or motor vehicles
- Order to surrender specific items or documents
Legal remedies against seizure
There are various legal remedies against the order of asset seizure, including immediate complaint pursuant to § 304 StPO or objection proceedings under the ZPO. The lawfulness of seizure is subject to strict judicial scrutiny.
Requirements and limitations of asset seizure
Statutory requirements
For asset seizure to be effective, there must be sufficient initial suspicion of a criminal offense or legal basis for a claim. In addition, the measure must be proportionate and represent the least restrictive suitable means.
Principle of proportionality
The measure must not be disproportionate to the importance of the matter or the value of the seized assets. Private law rights—especially of third parties—must be observed. In particular, the protection of property under Art. 14 Basic Law must be safeguarded.
Protection of third parties
Third parties whose rights are affected by asset seizure can lodge legal remedies. Civil law reservations of title, security rights, or liens remain effective, provided they are duly registered and proven.
Consequences of asset seizure
Legal consequences for the affected person
The seized assets may not be handed over, sold, or transferred without consent. Violation may result in criminal liability for obstructing enforcement or perverting the course of justice under § 258 StGB.
Return or realisation
If it turns out that the conditions for seizure are not met, the assets must be returned without delay. In the event of a conviction, they can be permanently confiscated and realised, for example, for the benefit of the state.
International aspects
European Union
Within the framework of international legal assistance, especially in the European Union, there are specific regulations on cross-border freezing, securing, and subsequent confiscation of assets in cases of cross-border crime.
International agreements
Cross-border agreements, such as the UN Convention against Corruption or the UN Convention against Transnational Organized Crime, govern cooperation in asset seizures and their mutual recognition.
Distinction from related terms
Asset seizure must particularly be distinguished from:
- Attachment: Enforcement action to satisfy individual creditor claims
- Restraint: Provisional measure to prevent the transfer of assets
- Confiscation: Final state access to assets after a court decision
References and links
- Code of Criminal Procedure (StPO)
- Code of Civil Procedure (ZPO)
- Criminal Code (StGB)
- Basic Law (GG)
- Federal Bar Association: Information on asset recovery and seizure
- European Commission: Legal assistance and asset recovery
Summary: Asset seizure is a nuanced instrument of German law with numerous fields of application in criminal, civil, and administrative law. It serves to protect state interests, enforce claims, and prevent unlawful transfers of assets, but is subject to strict statutory limitations and comprehensive legal protections.
Frequently asked questions
What rights do affected individuals have in case of asset seizure?
Persons affected by asset seizure have fundamental constitutional rights, in particular the right to be heard pursuant to Article 103(1) GG. They must be informed about the measure and given the opportunity to comment on the allegations as well as the grounds for seizure. Once a judicial order has been issued, it may be challenged by appeal (§ 304 StPO). In particular, the affected party has the right to inspect the file through their lawyer, provided the purpose of the seizure is not jeopardized. There is also the possibility to independently file a motion for a judicial decision against the seizure to have its legality reviewed. The affected person can also claim compensation if it is subsequently established that the measure was unlawful. In assessing rights, consideration must also be given to the severity of the interference, the principle of proportionality, and the general right of personality.
What is the legal procedure for asset seizure?
The procedure usually begins with a judicial order issued at the request of the investigating authority (§ 111b (1) StPO). The measure must be based on facts establishing initial suspicion and indicating that the assets concerned originate from a criminal offense, or are needed for confiscation or recovery claims. In emergencies, the public prosecutor’s office or police may act without a court order, but this must be promptly obtained afterwards. The measure is then carried out by administrative or enforcement bodies, for example by garnishing accounts or securing real estate. Throughout the entire process, the affected person may challenge the seizure legally, for example through appeal, motion for cancellation, or application to avert enforcement. Generally, the seizure remains in place until the legal conclusion of the proceedings or until it is lifted by a court.
Under what conditions can asset seizure be ordered?
Asset seizure may only be ordered if there is a concrete initial suspicion of a criminal offense and sufficient indications exist that assets were acquired through a crime or are required to secure confiscation or civil claims (§§ 111b, 111c StPO). In addition, the measure must be proportionate. This means that there must be no less severe means available to secure the purpose. Seizure is also limited to specific assets that are linked to the suspected offense or to confiscation. In all cases, the legitimate interest of the affected person must be weighed against the public interest in securing the assets.
Can legal remedies be filed against asset seizure?
Yes, several legal remedies are available to the affected person against asset seizure. In particular, an appeal under § 304 StPO may be filed with the competent court. If a provisional seizure is ordered without a judicial decision, a judicial ruling may be requested under § 98(2) sentence 2 StPO. During the investigation phase and even after charges have been brought, the affected person retains the right to apply for judicial review of the measure at any time. If the legal remedy is successful, the seizure can be wholly or partly lifted. In addition, interim legal protection may be sought in special cases if a particular disadvantage is imminent.
What happens to seized assets during the proceedings?
Seized assets are secured during ongoing criminal proceedings and may generally neither be sold nor realised. They remain in the custody of the judiciary or are managed by a judicial trustee, an authority, or a bank. In the case of money or bank balances, the account may be frozen. For real estate, a security mortgage is registered in the land register. The administration of items is always based on the principle of preserving value to secure any claims. In exceptional cases, a provisional realisation may be permitted if otherwise a loss of value is likely or administration would be disproportionately burdensome (§ 111p StPO).
What are the consequences for the affected party of unlawful asset seizure?
If an asset seizure is later found to be unlawful, the affected person is generally entitled to compensation. This may include the return of the seized assets and, under certain conditions, compensation for damages directly caused by the seizure (§ 7 StrEG). These may include, for example, lost interest, price losses, or damages from lost dispositions. A prerequisite for compensation is usually that the measure was unlawful or taken culpably. The affected person must specifically demonstrate the damage. In addition, in the case of unlawful measures, a claim for official liability against the state may exist.
How long can an asset seizure be maintained?
The duration of asset seizure is not explicitly regulated by law, but arises from the purpose of the measure: It may only last as long as its continuance is necessary for securing confiscation or enforcing civil claims. The continuation is regularly reviewed, especially within the scope of judicial control by appellate courts. At the latest, upon final completion of criminal proceedings, on discontinuation of proceedings, or when the purpose of securing is eliminated, the seizure must be lifted and the assets returned to the entitled person. Insurers, banks, and other third parties are obliged to release seized assets upon appropriate judicial orders.
