Confiscation
Confiscation
§ 26 StGB orders a measure of hazard prevention. The court seizes the object, not the person: it removes tools and products of the crime if their special condition favors the commission of further criminal offenses. The measure does not require a conviction; the determining factors are the underlying offense and the suitability for the offense. The entitled party can avoid confiscation by reliably eliminating the dangerous characteristic.
The confiscation according to § 26 StGB allows the court to withdraw objects from circulation that have enabled, facilitated, or produced a criminal offense. The goal is prevention: dangerous or offense-suitable things should not further promote future offenses.
Principle
An underlying offense forms the starting point. The object in question is related to the offense: either the perpetrator used it in the commission, intended it for that purpose, or the offense brought it about. In addition, the law requires a special condition that makes future offenses likely. The court determines these facts and justifies why the intervention is necessary.
Requirements
A prerequisite is the existence of an underlying offense, i.e., an act threatened with punishment.
The object must have been used for the act, intended for it, or brought about by the act.
It is sufficient that this connection exists objectively; a conviction is not required.
The measure remains possible even if grounds for exclusion of guilt, personal grounds for exclusion of punishment, or statute of limitations exist.
This ensures that dangerous objects can be confiscated regardless of the outcome of criminal proceedings.
Waiver
The legislator opens a protection scheme: the entitled party receives the opportunity to remove the dangerous characteristic and thus avoid the measure. If an uninvolved person has rights to the object, the court only orders confiscation if this person does not guarantee lawful use.
Special Condition
The confiscation requires that the object, due to its condition, poses a danger for the commission of further criminal offenses.
This criterion concerns the so-called suitability for offense:
An object is to be confiscated if its design, function, or enabling of use facilitates the commission of offenses.
Examples include weapons, manipulated devices, data carriers with punishable content, or specially adapted tools. If the dangerous characteristic is eliminated, such as by deleting inadmissible data or removing prohibited devices, the court must refrain from confiscation.
Practical example
In practice, there are clear differences in the application of confiscation
For example, the court rejected the confiscation of a folding knife because no special condition could be determined that indicated a danger for the commission of further criminal offenses.
It decided differently in the case of a data carrier with content relevant under criminal law: in this case, the confiscation was considered justified because the object was suitable by its nature for the commission of further offenses.
However, the entitled party was given the opportunity to eliminate the dangerous condition by deleting the data in question. In the case of tools or machines that are also used lawfully in everyday life or in a professional environment, on the other hand, confiscation is generally not ordered because there is no concrete danger for the commission of punishable acts.
Procedural Aspects
The confiscation must be expressly stated in the judgment.
A mere assumption or presumption is not sufficient; the court must determine the actual prerequisites. The measure can also take place independently,
if no specific person is being prosecuted, such as in the case of unknown or deceased perpetrators.
The decision on confiscation is part of the sentence and can be challenged by legal means.
Relationship to other Measures
The confiscation must be distinguished from other instruments of asset recovery.
While the forfeiture concerns unlawfully obtained assets
and the extended forfeiture covers assets of unclear origin,
the confiscation refers exclusively to the dangerousness of the object itself.
Thus, it does not have a punitive effect, but a securing one.
Your Benefits with Legal Assistance
A criminal proceeding is a significant burden for those affected. Serious consequences threaten right from the start – from coercive measures such as house searches or arrests, to entries in the criminal register, to custodial or monetary penalties. Errors in the initial phase, such as thoughtless statements or insufficient preservation of evidence, often cannot be corrected later. Economic risks such as claims for damages or procedural costs can also be substantial.
Specialized criminal defense ensures that your rights are protected from the outset. It provides security in dealing with the police and public prosecutor’s office, protects against self-incrimination, and creates the basis for a clear defense strategy.
Our law firm:
- examines whether and to what extent the accusation is legally sustainable,
- accompanies you through investigation proceedings and main hearing,
- ensures legally sound applications, statements, and procedural steps,
- assists in defending against or settling civil law claims,
- protects your rights and interests vis-à-vis the court, public prosecutor’s office, and victims.
Peter HarlanderHarlander & Partner Rechtsanwälte „Machen Sie keine inhaltlichen Aussagen ohne vorherige Rücksprache mit Ihrer Verteidigung. Sie haben jederzeit das Recht zu schweigen und eine Anwältin oder einen Anwalt beizuziehen. Dieses Recht gilt bereits bei der ersten polizeilichen Kontaktaufnahme. Erst nach Akteneinsicht lässt sich klären, ob und welche Einlassung sinnvoll ist.“
