Further tightening of asset confiscation law?

In the Right of confiscation the so-called Gross principle. Accordingly, the entire (hypothetical) profit from the crime must be confiscated – without deducting the acquisition costs or personal expenses. If someone is convicted of narcotics offenses, e.g. the sale of drugs, confiscation is ordered in the amount of the total sales volume attributable to him. The fact that money had to be spent on purchasing the drugs is not taken into account. For convicted persons, a confiscation order based on immense confiscation sums – at least with regard to their medium/long-term future – often have more drastic consequences than the conviction itself. In Hamburg, the “success” of criminal prosecution, measured in terms of confiscation amounts, is also often the subject of political interest.

Currently, a motion entitled “Consistently confiscate criminally acquired assets – Create asset investigation and confiscation procedures outside of criminal law'. This is intended to be about an "urgent improvement of investigative powers in the case of suspicious assets and assets of unknown origin, as well as to improve the state's confiscation options." According to the motion, among many other things, in our view constitutionally questionable intentions – a clear regulation should be created according to which such assets and wealth “already below the threshold of initial criminal suspicion“ (in the draft on page 3 under II./1./lit. b) investigations may be carried out. Furthermore, these should be able to be secured if there are indications that they could be withdrawn from the proceedings (there under II./1./lit. e).

For a Initial suspicion within the meaning of Section 152 of the Code of Criminal Procedure – which, according to the principle of legality, triggers a compulsion for prosecution by the law enforcement authorities – is to be assumed if there are "sufficient factual indications" of a crime. Here, too, there is a margin of appreciation, in particular when indications are "sufficient". That this is the case according to the current reform efforts The fact that the Union's legal framework is now to be further weakened by apparently not sufficient / sufficient / adequate, but simply any evidence being sufficient to carry out investigations, is obviously questionable in view of the constitutional requirement of clarity.

In addition, the (co-)trigger for investigations and seizures according to the motion under discussion is that the Assets themselves “suspicious” or “of unknown origin” This means that the state should no longer base its decision on a crime or a person suspected of a crime – who has gained something through or for an unlawful act, as currently provided for in Section 73 of the Criminal Code – but based on an asset himself take action This raises numerous legal questions: When is a villa on Lake Starnberg or a yacht in a Baltic harbor not inherently "suspicious"? How can one continue to drive an (expensive) car to the shops on Jungfernstieg in Hamburg – only with receipts and proof of origin in the glove compartment? And so on.