Definition and Significance of Seizure
Die Seizure is a central term in German law, especially in police and regulatory law, criminal procedure law, as well as other fields such as customs and administrative law. Seizure generally refers to the official taking into custody of objects by a competent state authority in order to achieve specific, legally defined purposes. In this process, custody of the item is transferred to the state, while ownership generally remains unaffected.
Seizure differs from confiscation in that it generally serves a preventive purpose and is not primarily a criminal procedural measure, but rather serves to avert danger or for temporary safekeeping.
Legal Basis for Seizure
Police and Regulatory Seizure
In police and regulatory law, seizure is one of the most important instruments for averting danger. The key legal foundations are found in the state police laws (e.g., Section 43 of the Police and Regulatory Authorities Act of NRW, Section 40 of the Federal Police Act) as well as in other state law provisions.
Seizure is generally permissible
- to avert an immediate danger to public safety or order,
- to protect or secure the property or other rights of third parties,
- to remedy disturbances when the owner is unknown, unreachable, or unwilling to fulfil their legal obligation to eliminate a hazard,
- for the temporary safekeeping of lost or ownerless property (found property).
Requirements
For the lawfulness of police seizure measures, the following requirements generally apply:
- Danger to public safety or order: There must be a specific danger, for example, if an object poses a risk to life, health, or physical assets.
- Proportionality: The measure must be suitable, necessary, and appropriate.
- Formal Requirements: A formal order is usually required; the affected person must—where possible—be heard and informed of their rights.
Criminal Procedural Seizure
In criminal procedure law, seizure is a means of securing criminal prosecution under the Code of Criminal Procedure (StPO). It is particularly considered for items needed as evidence (§ 94 StPO), or those subject to confiscation.
Forms
- Evidence Preservation Seizure (§ 94 StPO): To clarify a criminal offense, objects that could be of significance as evidence may be seized.
- Preliminary Seizure (§ 111b StPO): Here, the focus is on securing forfeiture, confiscation, or other criminal law measures.
Process and Procedure
- Seizure by Taking into Custody: Surrender of the object to the law enforcement authorities.
- Seizure by Sealing: In rarer cases, official sealing may suffice.
- Documentation Requirements: The seizure must be recorded and the affected person must be informed of the measure.
Distinction: Seizure, Confiscation, and Forfeiture
Differences from Confiscation
Confiscation (§§ 94 ff. StPO) is a more intensive intrusion and usually requires a judicial order. It is generally repressively motivated, i.e., ordered after a criminal offense to prevent further legal infringements. In contrast, seizure primarily serves preventive and administrative purposes, without direct criminal procedural intent.
Distinction from Forfeiture
Forfeiture is a criminal law measure by which ownership of an object is permanently transferred to the state by judicial order. Seizure, on the other hand, is provisional, with ownership remaining with the previous holder.
Practical Examples of Seizure
- Seizure of a weapon by the police because it poses a danger to third parties
- Seizure of found property by authorities for later management and return
- Seizure of hazardous substances during an inspection under chemicals law
- Seizure of evidence by the public prosecutor or by investigative authorities
Rights of the Affected Party and Legal Remedies
Hearing and Information
Affected persons are entitled to early information about the seizure, its reasons, and their rights. Unless there is imminent danger, a prior hearing is required.
Legal Remedies
The following legal remedies are available to affected persons in particular against measures of seizure:
- Objection (in administrative proceedings)
- Application for a judicial decision (pursuant to §§ 98(2), 98(3) StPO in criminal proceedings)
- Legal action before administrative courts
The affected person can also demand the return of the seized item if the requirements cease to exist.
Duration and Termination of Seizure
As a rule, the duration of seizure is limited to the period during which the conditions for its order are met. As soon as the purpose of the seizure ceases to exist—for example, if the danger is removed or the criminal proceedings are concluded—the measure must be lifted without delay. The return is made to the entitled person.
Costs and Consequences of Seizure
Seizure may involve costs for custody and administration, which can be charged to the owner, especially under police and regulatory law. In addition, seizure can lead to subsequent measures such as realization (sale) or destruction if return is excluded.
Relevance and Significance in the Legal System
Seizure plays an important role in enforcing the state’s monopoly on the use of force, averting dangers, and clarifying criminal offenses and administrative violations. It combines preventive and repressive elements and is thus a key component of German public order and security law. Its design and implementation are subject to strict legal requirements to protect the fundamental rights of affected persons and to ensure effective hazard prevention.
Source notice: The legal provisions on seizure are found in particular in the state police laws, the Criminal Code, the Code of Criminal Procedure, and the Civil Code. Further information is provided in commentaries on these statutes.
Frequently Asked Questions
When can a seizure be ordered in a legal context?
A seizure may be ordered in a legal context if certain statutory requirements are met. In criminal procedure law, for example, especially according to §§ 94 ff. StPO (Code of Criminal Procedure), seizure is permissible if items are important as evidence in the proceedings or if their confiscation is necessary for forfeiture, collection, or incapacitation. Similar provisions exist in other areas of law, such as police and regulatory law, where seizure serves the purpose of averting dangers to public safety and order (Section 43 PolG NRW and comparable regulations in other federal states). The order is usually made by the competent authorities or officials, although in certain cases a judicial decision may also be required, particularly when the measure affects fundamental rights such as property.
What rights do persons affected by seizure have?
Persons affected by seizure enjoy various protective mechanisms in the legal context. They must generally be informed about the measure and its reasons. For example, pursuant to § 98(2) StPO, they have the right to apply for a judicial review against confiscation (which frequently follows a prior seizure) (so-called judicial confirmation). In police law, too, it is generally required to hear affected persons before a measure is taken, unless there is imminent danger. Furthermore, affected persons may request access to the files and, in case of an unlawful measure, claim damages or compensation.
What role does proportionality play in seizure?
The principle of proportionality is central to any seizure. This means that authorities must always examine whether the seizure is suitable, necessary, and appropriate to achieve the legally protected objective. Seizure must not be carried out if there are less severe means available that would achieve the same success. The measure must also be reasonably proportionate to the intended purpose, with particular consideration of the fundamental right to property (Art. 14 Basic Law). Excessive or clearly unreasonable seizures are unlawful.
How long may a seizure last?
The duration of a seizure is clearly limited by law. It may only continue for as long as is necessary to achieve the purpose of the seizure. In criminal proceedings, the Code of Criminal Procedure stipulates that seized items must be returned without delay as soon as they are no longer needed as evidence or any other purpose for the seizure ceases. Similar requirements arise under the general principle of proportionality in police law, so that continued seizure must also be regularly reviewed there. Prolonged seizures without sufficient legal grounds give rise to claims for compensation.
Who is responsible for and controls seized items?
Responsibility for the proper storage and handling of seized items lies with the authority conducting the seizure or the executing officers. In criminal proceedings, this duty falls upon the public prosecutor’s office and its investigators, while in the area of police law, the responsible police authority is key. The authority is obliged to handle items carefully, keep them securely, and issue a proper receipt for the seizure upon request (§ 98(1) StPO, § 44(2) PolG NRW). Misuse, loss, or damage during official custody can lead to liability claims against the authorities.
What legal remedies are available against a seizure?
Depending on the legal basis, various remedies are available against a seizure. In criminal law, a judicial decision may be requested in accordance with § 98(2) StPO; in police law, objection and, if necessary, an action for annulment before the administrative court are regularly possible. The prospects of such legal remedies depend on the circumstances of the individual case and the fulfillment of the legal requirements for the measure. Affected persons should argue that the legal requirements have lapsed or the measure was disproportionate. In special cases, interim legal protection can also provide for the provisional return of the item.
What happens to seized items if their return is no longer possible?
If an item that has been seized cannot be returned for factual or legal reasons, substitute mechanisms apply. In criminal proceedings, for instance, compensation is to be provided under statutory provisions in the event of disappearance (§ 7 StrEG). Police law also provides that damages are to be granted for unlawfully withheld or damaged items. The specific enforcement of such claims is usually made through civil or official liability proceedings and requires the unlawful or culpable treatment of the item.
