Incidental finds in law
The term incidental finds describes in German law tangible objects, especially items of scientific, artistic, or archaeological value, that are discovered without a targeted search, for example in the course of construction work or agricultural activities. Legal regulations concerning incidental finds serve both to protect public interests (such as the preservation of cultural assets) and to balance the interests between the finder, property owner, and the state.
Legal foundations for incidental finds
German Civil Code: Treasure find (§ 984 BGB)
Incidental finds are not specifically defined by law, but they are referenced particularly in connection with treasure finds. Section 984 BGB stipulates that a treasure (an object of some value that has been hidden for so long that the owner cannot be determined) belongs half to the finder and half to the property owner. However, special laws may apply to typical archaeological or paleontological incidental finds.
Monument protection laws of the federal states
Most regulations on incidental finds derive from the monument protection laws of the German federal states. These regulations typically specify that finds discovered during digging must be reported and may become the property of the state entirely or in part. The purpose is to ensure the scientific preservation and conservation of items of historical significance.
Definition distinctions
Incidental find versus treasure find
While a treasure find refers to long-hidden valuables not actively sought, the incidental find especially includes items of scientific or historical value whose origin or prior knowledge is unclear.
Movable and immovable finds
Movable objects are often subject to different regulations than immovable items. For example, a buried pot of coins is to be treated differently from a permanently installed structure, such as a fragment of a wall.
Finder’s obligations
Obligation to report
The central duty with incidental finds is the immediate reporting to the competent authority (usually the monument authority, building office, or police). Failure to report can result in forfeiture of the find and administrative fines or even criminal offenses (see § 12 DenkmSchG NRW, for example).
Safeguarding and preservation
Until the authority takes possession, the finder is obligated to protect the find from loss or damage and to leave it unchanged. For finds of scientific significance, there is often even a prohibition on interference until official takeover.
Ownership and possession relations
Statutory acquisition by the state
If a federal state holds sovereign rights to monument finds, ownership transfer takes place immediately, directly by force of law (e.g., § 14 DSchG BW). Claims for compensation by the finder or property owner are measured according to the find’s value and significance.
Rights of the property owner
Property owners can assert half ownership rights where statutory acquisition rights do not exist (treasure rule under § 984 BGB). The specific design depends on the respective state legislation.
Entitlement to reward or compensation
If the find is ceded to or claimed by the state, in many federal states, there is a right to a finder’s reward or compensation. This is generally determined by market value but may also contain a deduction for scientific or cultural value.
Criminal and regulatory consequences
Intentional or negligent failure to report an incidental find is subject to sanctions. Many state laws impose fines, and in severe cases, criminal penalties may apply, for example, in cases of theft, embezzlement, or damage to cultural property (§ 304 StGB – damage to property detrimental to the public).
Practical significance
Construction companies and farmers
In work involving earth movement, there is an increased likelihood of encountering incidental finds. For construction companies, this often means work must be suspended until clarification by the competent authority.
Archaeological prospecting and amateur finds
Special regulations also apply when using metal detectors and for hobby excavations. In many federal states, targeted searching without permission is prohibited.
Overview of international regulations
Regulations on incidental finds also exist outside Germany, for example in Austria (Monument Protection Act) or Switzerland (Federal Act on the Protection of Cultural Property). There, too, there is usually an obligation to report and the state has rights to the find.
References
- German Civil Code (BGB)
- Monument protection laws of the federal states
- Criminal Code (StGB)
- Commentary literature on the protection of cultural property
Summary
Incidental finds occupy a special position in German law because they involve valuable but accidentally discovered cultural assets. The extensive statutory regulations serve to protect and secure significant finds and detail the rights and obligations of the finder, property owner, and the state. The exact legal classification always requires consideration of relevant state law and applicable federal regulations.
Frequently asked questions
What legal provisions must be observed for incidental finds during official investigations?
For incidental finds discovered during official investigations – such as searches under §§ 102 ff. StPO – special legal provisions apply. Of particular importance is § 108 StPO (“Incidental finds”), according to which objects or documents not specifically named in the search warrant may also be seized if they indicate a criminal offense and seizure would otherwise be permitted under general rules. However, this only applies if there is initial suspicion of another offense and the legal prerequisites for such measures are fulfilled accordingly. Additional restrictions—such as the right to refuse to testify or professional secrecy (§§ 52, 53, 97 StPO)—must also be observed. The lawfulness of the incidental find always requires careful case-by-case examination, particularly with regard to the principle of proportionality and the general right of personality under Art. 2(1) in conjunction with Art. 1(1) GG.
How are incidental finds used in other criminal proceedings?
The admissibility of utilizing incidental finds in another criminal proceeding is governed primarily by § 161(3) StPO and the general rules on the use of evidence. In principle, incidental finds can be used for the prosecution of other offenses, as long as there are no evidentiary prohibitions—such as violations of fundamental or procedural rights. Particularly relevant in this context are regulations on the secrecy of telecommunications (§ 100a StPO), data protection (BDSG, DSGVO), and the general right of personality. An absolute prohibition on use applies, for example, to violations of judicial authorization or constitutional protection of the inviolability of the home, as long as there was no “sufficient” or “urgent” suspicion of an offense. Courts regularly weigh whether the public interest in prosecution outweighs the individual rights of those affected.
What role do judicial orders play in the seizure of an incidental find?
Usually, a judicial order is required for the seizure or confiscation of incidental finds, unless there is imminent danger (§ 105 StPO). This is required due to the need for judicial approval—particularly for measures especially sensitive to fundamental rights, such as searching homes, offices, or electronic devices. The investigating officer must promptly report the facts to the public prosecutor or court so that a judicial decision can be obtained if circumstances permit. Subsequent judicial review is mandatory if the provisional seizure was carried out without prior judicial order. Compliance with judicial authorization is essential for any later use of the incidental find in court, as a violation regularly leads to the exclusion of evidence.
What rights do affected persons have when incidental finds are seized?
Affected persons have comprehensive rights regarding the seizure of incidental finds, which must be safeguarded by the investigating authorities. The most important rights include the right to immediate information about the reason and nature of the measure, the right to legal counsel, and the right to lodge a complaint against the seizure and confiscation under § 304 StPO. Proper documentation and recordkeeping of the incidental find, including a confiscation record (§ 107 StPO), must also be ensured. Affected persons can seek judicial review of the lawfulness of the measure. Furthermore, under § 113 StPO, they have a right to recover seized items if the investigation interest no longer exists.
Are there differences between incidental finds in criminal proceedings and those in administrative law contexts?
Yes, there are significant differences between incidental finds in criminal proceedings and those in administrative law. While in criminal procedure the provisions of the Code of Criminal Procedure (particularly §§ 94-98, 102-110 StPO) apply, with strict adherence to initial suspicion and potential evidentiary prohibitions, in administrative law, the general principles of administrative law (e.g., administrative enforcement laws of the states, VwGO) and property protection under Art. 14 GG prevail. In administrative matters, incidental finds are primarily assessed according to the principle of proportionality and the prohibition of excess. The consequences for those affected differ; in criminal procedure, investigations may be initiated, while in administrative law, an incidental find usually has consequences for official measures (e.g., revocation of a license, risk prevention).
What happens if, during a targeted search, evidence of mere administrative offenses is found as an incidental find?
Mere administrative offenses, as opposed to criminal offenses, are subject to a different regulatory regime. If, during a criminal procedural measure, incidental finds are made pointing to administrative offenses, their admissibility must be examined in accordance with the relevant administrative offense laws (especially OWiG). An incidental find may indeed lead to a fine proceeding, but the threshold for coercive measures is generally higher, and a judicial order is less frequently required. However, incidental finds may not be used to prosecute administrative offenses if the initial search was unlawful or an evidentiary prohibition exists. Special care must be taken with incidental finds that affect the core areas of private life, where a particularly strict standard of proportionality applies.
What special rules apply to incidental finds involving persons with restricted or absolute secrecy protection?
Special protective provisions apply to incidental finds involving persons subject to secrecy, such as doctors, Rechtsanwalt, or clergy. Under § 97 StPO and the testimony refusal rights of §§ 52-53a StPO, certain documents and objects protected by professional confidentiality may neither be seized nor used as evidence. This applies even if they are found as incidental finds in the course of a lawful search. Investigating authorities have a special duty of care here and must immediately secure such items and submit them to the competent court for a decision on seizure. Any breach regularly results in comprehensive inadmissibility of evidence, which also excludes use in further criminal proceedings. In cases of doubt over secrecy protection, the court may decide in an interim procedure (so-called blocking effect under § 97(5)-(6) StPO).
