Concept and legal basis for third parties affected by confiscation
Als Third Parties Affected by Confiscation (Einziehungsbeteiligte) are referred to in German criminal proceedings as natural or legal persons whose rights are affected or challenged by an imposed confiscation (§§ 73 et seq. StGB, §§ 111b et seq. StPO). The involvement may be active (holder of an item or asset seized by the state) or passive (being encumbered by the confiscation).
Confiscation is a governmental asset access measure aimed at removing objects or assets obtained from or used for unlawful acts from circulation. The third parties affected by confiscation hold a special status in the proceedings, characterized by various protective mechanisms and participatory rights.
Legal Basis
Criminal Code (StGB)
The central provisions concerning confiscation can be found in §§ 73 to 76a StGB. These regulate in particular the requirements, scope, and execution of confiscation. The regulations cover both value-based confiscation and the confiscation of proceeds and instrumentalities of the offense.
Code of Criminal Procedure (StPO)
The incorporation of confiscations into criminal proceedings, particularly participatory rights, is governed by §§ 111b to 111n StPO, and especially §§ 424 et seq. StPO. Procedural rights and protective regulations for third parties who qualify as those affected by confiscation are anchored here.
Civil Law Provisions
Third parties affected by confiscation may act within the framework of § 985 BGB (restitution claims) as well as in objection proceedings under § 111k StPO. Civil-law interests may thereby be implicated if property positions are impacted by confiscation.
Types and Status of Third Parties Affected by Confiscation
1. Affected Third Parties
Primarily, those third parties whose rights to a confiscated item are impaired (§ 424 StPO) are considered persons affected by confiscation. This includes owners, possessors, or other entitled individuals whose legal status is affected by the confiscation order. They have the right to participate in the criminal proceedings and to raise objections.
2. Legal Successors
Rights may also be transferred to legal successors. The confiscation order may therefore also cover subsequent holders of the affected item or claim. Legal successors are also entitled to participatory rights so long as their legal position is affected by the confiscation measure.
3. Multiple Participants
Where several persons are deemed entitled, each is treated as an affected party in the confiscation. There may therefore be numerous parties affected by confiscation in the same proceeding.
Procedural Status and Rights of Participation
1. Participation in the Confiscation Proceedings
Persons affected by confiscation are included in the proceedings pursuant to § 424 StPO. In this way, they receive the right to:
- Notification of confiscation
- Access to files (limited, where third-party or state interests worthy of protection are affected)
- Right to file applications, to be heard, and to object
- Opportunity to independently defend their rights
2. Right to be Heard and Legal Remedies
Persons affected by confiscation have the right to be heard. They may comment on all relevant issues and file motions for evidence. They can challenge the confiscation with the legal remedies available to them (appeal, revision, etc.).
3. Assistance in Recovery and Compensation
Affected parties who have a legitimate claim to the confiscated item or its value may assert claims in recovery-assisted proceedings (§§ 111i, 459h StPO) or may demand compensation for losses suffered as a result of confiscation. Certain deadlines must be observed.
4. Protection of Good Faith Acquisition
Persons who have acquired rights to an item in good faith are generally protected from confiscation (§ 73e StGB). Confiscation does not apply in these cases if legal acquisition in good faith has occurred.
Procedure Following Confiscation
1. Restitution and Return of Confiscated Items
If claims of affected parties are recognized or judicially established, they have a right to restitution of the item or payment of its value.
2. Refund of Substitute Performance
If restitution is no longer possible (e.g., because the item was destroyed), there may be a claim for value compensation or substitute (§ 459k StPO). The specific arrangements depend on the procedure in question and the rights involved.
3. Third-Party Opposition Proceedings
Affected parties may, in enforcement proceedings—especially in so-called third-party opposition proceedings (§ 111g, § 111k StPO)—lodge objections to the enforcement of confiscation and assert their rights.
Practical Questions and Examples
1. Typical Case Scenarios
- A car used as an instrumentality of crime is confiscated; a leasing company is involved as the owner.
- A sum of money attributable to a third party as a security deposit is confiscated.
- A bona fide real estate purchaser is affected after confiscation of a property.
2. Interfaces with Insolvency Law
If insolvency proceedings are pending against an affected person, confiscation measures impact the insolvency estate and the rights of creditors as well as affected parties.
Distinction from Other Types of Parties
Affected parties are to be distinguished from interveners and other third parties (e.g., witnesses, injured parties). The decisive factor is the direct impairment of their rights by the confiscation; general interests are not sufficient.
References and Further Regulations
- §§ 73 et seq. Criminal Code (StGB)
- §§ 111b et seq., 424 et seq. Code of Criminal Procedure (StPO)
- Commentary on StGB and StPO (e.g., Fischer, Schönke/Schröder, Meyer-Goßner/Schmitt)
- Federal Court of Justice jurisprudence on confiscation and the legal status of third parties
The term Third Parties Affected by Confiscation thus denotes a distinct procedural status in German criminal proceedings. The extensive rights of protection and participation serve to balance the state’s access to assets obtained from or used in criminal offenses and the legal protection of those affected.
Frequently Asked Questions
How is a person’s participation as an affected party established in criminal proceedings?
In criminal proceedings, a person’s status as an affected party is determined according to § 424(1) StPO by whether items or assets to be secured or confiscated could be in their ownership or possession or they have a legal interest in them. This determination is generally made by court order after examining whether the statutory requirements for confiscation—especially the origin of the items from a crime or their use in committing one—are met. The prospective affected party must be informed about the proceedings in time in accordance with § 430 StPO and given the opportunity to comment on the facts and on their rights. If doubts arise as to whether the relevant assets actually belong to the person concerned, the court is obliged to investigate the entitlement; this may include hearing witnesses, requesting proof of ownership, and examining other evidence.
What rights do affected parties have during confiscation proceedings?
Affected parties enjoy special procedural rights to prevent the improper confiscation of assets. According to § 430(1) StPO, they have the right to be heard and may request access to relevant files, provided this does not jeopardize overriding third-party or investigative interests. They may also file motions for evidence, submit applications of their own, and appoint legal counsel. Against the confiscation order, affected parties have the right to appeal (§ 424(2) StPO) so that the legal and factual basis can be reviewed by a court. If a decision becomes final, further civil claims for return or compensation may be possible, for example under §§ 985 et seq. BGB.
In what cases may a person be recognized as an affected party?
A person may be recognized as an affected party if they are legally or de facto affected by the confiscation, for example as owner, possessor, holder of a related right (e.g., pledge), or as an economically entitled person with respect to the item subject to confiscation. Involvement may also exist in cases where a person has a security right in the item to be confiscated (e.g., banks with security ownership in vehicles), or if they have a derivative right (heirs, assignees, etc.) entitling them to demand return of the item. The precise extent of involvement is determined by substantive law principles, and both economic interest and formal legal positions must be taken into account.
What duties do affected parties have in criminal proceedings?
Affected parties do not have original procedural duties to participate in clarification, but they are obliged to assert their rights substantively in the proceedings. If they fail to respond in time or to provide appropriate evidence (e.g., title deeds, contracts), the confiscation decision may be handed down to their disadvantage. Obligations consist of acting against a prospective confiscation order in good time; failure to object may result in the loss of rights. Any necessary procedural actions must be taken within the periods prescribed by law.
What remedies are available for affected parties after an unlawful confiscation?
If the assets of a person affected have been confiscated unlawfully, several remedies are available. First, within the criminal proceedings, the legal remedy of appeal under § 424(2) StPO, or, in the event of a conviction of the defendant, the remedy of objection or revision, may be used where the confiscation decision is concerned. If it only becomes known after finality that a person was entitled, an application for return under § 459h StPO may be filed. In addition, civil law claims—primarily by way of third-party opposition actions under § 771 ZPO or motions for retransfer—may be asserted against the state treasury for restitution or compensation.
Is there a right to compensation for affected parties?
Affected parties are generally not entitled to compensation if the item was lawfully confiscated. However, if the confiscation was unlawful and the party was affected accordingly, a claim for damages against the state may arise, for instance under §§ 7 et seq. StrEG (Law on Compensation for Criminal Prosecution Measures), provided there was an illegal state act. In addition, general civil law principles may give rise to claims for damages or restitution.
How is the relationship between confiscation and the property rights of third parties regulated?
The relationship between criminal procedural confiscation and the property rights of third parties is expressly regulated by law. Persons affected by confiscation may only be affected in their rights if the statutory requirements—especially pursuant to §§ 73 et seq. StGB—are met. In cases of doubt, the decision is to be made in favor of the third party; confiscation is excluded if the item was not acquired from the offense but from their own right (§ 73e(1) StGB). In the event of an objection, an independent review of the existence and proof of rights in the proceedings may be necessary. Both material property rights and formal criteria from the BGB and other relevant provisions are taken into account.
