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German Criminal Code
(Extract)
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Section 43a Imposition of Property Fine
(1) If the law refers to this provision, then the court may, collateral to imprisonment for life or for a fixed term of more than two years, impose payment of a sum of money, the amount of which is limited by the value of the perpetrator's assets (property fine). Material benefits which have been ordered forfeited shall be excluded in assessing the value of the assets. The value of the assets may be estimated.
(2) Section 42 shall apply accordingly.
(3) The court shall indicate a term of imprisonment, which shall be substituted for the property fine if it is uncollectible (default imprisonment). The maximum term of default imprisonment shall be two years, the minimum, one month.
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Title Seven Forfeiture And Confiscation
Section 73 Prerequisites for Forfeiture
(1) If an unlawful act has been committed and the perpetrator or inciter or accessory has acquired something as a result thereof or for the purpose of committing it, then the court shall order its forfeiture. This shall not apply to the extent that a claim by the aggrieved party has arisen out of the act the satisfaction of which would deprive the perpetrator or inciter or accessory of the value of that which was acquired by virtue of the act.
(2) The order of forfeiture shall extend to derived benefits. It may also extend to objects which the perpetrator or inciter or accessory has acquired through alienation of an acquired object, as a replacement for its destruction, damage or seizure or on the basis of an acquired right.
(3) If the perpetrator or inciter or accessory acted for another and the latter acquired something thereby, then the order of forfeiture under subsections (1) and (2) shall be directed at him.
(4) Forfeiture of an object shall also be ordered if it is owned or claimed by a third party, who furnished it for the act or otherwise with knowledge of the attendant circumstances of the act.
Section 73a Forfeiture of the Replacement Value
To the extent that the forfeiture of a particular object is impossible due to the nature of what was acquired or for some other reason or because forfeiture of a replacement object pursuant to Section 73 subsection (2), sent. 2, has not been ordered, the court shall order the forfeiture of a sum of money which corresponds to the value of that which was acquired. The court shall also make such an order collateral to the forfeiture of an object to the extent its value falls short of the value of that which was originally acquired.
Section 73b Estimation
The extent of what has been acquired and its value, as well as the amount of the claim the satisfaction of which would deprive the perpetrator or inciter or accessory of that which was acquired, may be estimated.
Section 73c Hardship Provision
(1) Forfeiture shall not be ordered to the extent it would constitute an undue hardship for the person affected. The order need not be made to the extent the value of that which was acquired is no longer part of the affected person's assets at the time of the order or if that which was acquired is only of slight value.
(2) In approving facilitation of payment Section 42 shall apply accordingly.
Section 73d Extended Forfeiture
(1) If an unlawful act has been committed pursuant to a law which refers to this provision, then the court shall also order the forfeiture of objects of the perpetrator or inciter or accessory if the circumstances justify the assumption that these objects were acquired as a result of unlawful acts, or for the purpose of committing them. Sentence 1 shall also be applicable if the perpetrator or inciter or accessory does not own or have a claim to the object only because he acquired the object as a result of an unlawful act or for the purpose of committing it. Section 73 subsection (2), shall apply accordingly.
(2) If forfeiture of a particular object after the act has become impossible in whole or in part, then Sections 73a and 73b shall to that extent be applied by analogy.
(3) If, after an order of forfeiture pursuant to subsection (1) due to another unlawful act which the perpetrator or inciter or accessory committed before the order, a decision must again be made as to the forfeiture of objects of the perpetrator or inciter or accessory, then the court, in so doing, shall consider the order already issued.
(4) Section 73c shall apply accordingly.
Section 73e Effect of Forfeiture
(1) If forfeiture of an object is ordered, then ownership of the property or the right forfeited shall pass to the state when the decision becomes final, if the person affected by the order has a claim thereto at the time. The rights of third parties in the object shall remain intact.
(2) Before it becomes final the order shall have the effect of prohibiting alienation within the meaning of section 136 of the Civil Code; the prohibition shall also encompass dispositions other than alienations.
Section 74 Prerequisites for Confiscation
(1) If an intentional crime has been committed, then objects which were generated thereby or used or intended for use in its commission or preparation may be confiscated.
(2) Confiscation shall only be permissible if:
1. the perpetrator or inciter or accessory owns or has a claim to the objects at the time of the decision; or
2. the objects, due to their nature and the circumstances, endanger the general public or there exists a danger that they will be used for the commission of unlawful acts.
(3) Under the provisions of subsection (2), no. 2, confiscation of objects shall also be permissible if the perpetrator acted without guilt.
(4) If confiscation is prescribed or permitted by a special provision over and above subsection (1), then subsections (2) and (3) shall apply accordingly.
Section 74a Extended Prerequisites for Confiscation
If the law refers to this provision, then objects may also be confiscated, as an exception to Section 74 subsection (2), no. 1, if at the time of the decision the person who owns or has a claim to them:
1. has at least recklessly contributed to the fact that the property or the right thereto has been the object or instrumentality of the act or its preparation; or
2. has acquired the objects in a reprehensible manner with knowledge of the circumstances which would have permitted their confiscation.
Section 74b Principle of Proportionality
(1) If confiscation is not prescribed, then it may not be ordered in cases under Sections 74 subsection (2), no. 1 and 74a when it is disproportionate to the significance of the act committed or the reproach attaching to the perpetrator or inciter or accessory or the third party in cases of Section 74a affected by the confiscation.
(2) In cases under Sections 74 and 74a the court shall order that the confiscation be reserved and shall impose a less incisive measure if the objective of the confiscation can also be thereby attained. Particular consideration shall be given to instructions:
1. to render the objects unusable;
2. to remove particular fittings or distinguishing marks or otherwise modify the objects; or
3. to deal with the objects in a specified manner. If the instructions are followed, the reservation on confiscation shall be lifted; otherwise the court shall subsequently order the confiscation.
(3) If the confiscation is not prescribed, then it may be limited to a part of the objects.
Section 74c Confiscation of Replacement Value
(1) If the perpetrator or inciter or accessory has used, particularly through alienation or consumption, the object which he owned or had a claim to at the time of the act and which could have been subject to confiscation, or if he has otherwise obstructed the confiscation of the object, then the court may order the confiscation from the perpetrator or inciter or accessory of a sum of money no greater than an amount equivalent to the value of the object.
(2) The court may also make such an order collateral to the confiscation of an object or in place thereof, if the perpetrator or inciter or accessory has, prior to the decision on confiscation, encumbered it with the right of a third party, the extinguishment of which cannot be ordered without compensation or could not be ordered in the case of confiscation (Sections 74e subsection (2), and 74f); if the court makes the order collateral to the confiscation, then the amount of the replacement value shall be measured according to the value of the encumbrance on the object.
(3) The value of the object and the encumbrance may be estimated.
(4) In approving facilitation of payment Section 42 shall apply.
Section 74d Confiscation of Writings and Rendering Unusable
(1) Writings (Section 11 subsection (3)), which have a content such that every intentional dissemination with knowledge of their content would satisfy the elements of a penal norm, shall be confiscated if at least one copy was disseminated by means of an unlawful act or was intended for such dissemination. It shall simultaneously be ordered that the equipment used or intended for the production of the writings, such as plates, frames, type, blocks, negatives or stencils, be rendered unusable.
(2) The confiscation shall extend only to copies which are in the possession of the persons involved in their dissemination or preparation or which have been publicly displayed or, having been forwarded for dissemination, have not yet been distributed to the recipient.
(3) Subsection (1) shall correspondingly apply to writings (Section 11 subsection (3)) which have a content such that intentional dissemination with knowledge of their content would satisfy the elements of a penal norm only when additional attendant circumstances of the act are present. Confiscation and rendering unusable shall, however, only be ordered to the extent that:
1. the copies and the objects indicated in subsection (1), sentence 2 are in the possession of the perpetrator, inciter or accessory or another on whose behalf the perpetrator or inciter or accessory acted, or are intended by these people for dissemination; and
2. the measures are required to prevent unlawful dissemination by these persons.
(4) It shall be deemed equivalent to dissemination within the meaning of subsections (1) to (3), if a writing (Section 11 subsection (3)) or at least one copy of the writing has been made accessible to the public by display, posting, presentation or other means.
(5) Section 74b subsections (2) and (3), shall apply accordingly.
Section 74e Effect of Confiscation
(1) If an object is confiscated, then ownership of the property or the right confiscated shall pass to the state when the decision becomes final.
(2) The rights of third parties in the object shall remain intact. However, the court shall order the extinguishment of these rights if it bases confiscation on the fact that the conditions of Section 74 subsection (2), no. 2, exist. It may also order the extinguishment of the rights of a third party if he may not be granted compensation pursuant to Section 74f subsection (2), nos. 1 or 2.
(3) Section 73e subsection (2), shall apply accordingly for the order of confiscation and the order reserving confiscation, even when it has not yet become final.
Section 74f Compensation
(1) If a third party had a claim of ownership in the property or the confiscated right at the time the decision on confiscation or rendering unusable became final or if the object was encumbered by a right of a third party which was extinguished or interfered with by the decision, then the third party shall be appropriately compensated in money from the public treasury taking into consideration the fair market value.
(2) Compensation shall not be granted, if:
1. the third party has at least recklessly contributed to the fact that the property or the right thereto has been the object or instrumentality of the act or its preparation;
2. the third party has acquired the object or the right in the object in a reprehensible manner with knowledge of the circumstances which permit its confiscation or rendering unusable; or
3. it would be permissible, under the circumstances which justify the confiscation or rendering unusable, to confiscate the object from the third party permanently and without compensation on the basis of legal provisions outside of the criminal law.
(3) In cases under subsection (2) compensation may be granted to the extent it would constitute an undue hardship to refuse it.
Section 75 Special Provision for Entities and Representatives
If someone commits an act:
1. as an entity authorized to represent a legal person or as a member of such an entity;
2. as chairman of the executive committee of an association without legal capacity or as a member of such committee;
3. as a partner authorized to represent a commercial partnership; or
4. as authorized representative with full power of attorney or in a management position as general agent or authorized representative with a commercial power of attorney of a legal person or an association of persons named in numbers 2 or 3, which in relation to him and under the other prerequisites of Sections 74 to 74c and 74f would permit the confiscation of an object or its replacement value or justify the exclusion of compensation, then his act shall be attributed by application of these provisions to the person represented. Section 14 subsection (3), shall apply accordingly.
Common Provisions
Section 76 Subsequent Order of Forfeiture or Confiscation of Replacement Value
If an order of forfeiture or confiscation of an object is not practicable or insufficient because one of the preconditions indicated in Sections 73a, 73d subsection (2), or 74c has occurred or become known, then the court may subsequently order the forfeiture or confiscation of the replacement value.
Section 76a Independent Orders
(1) If for factual reasons no particular person may be prosecuted or convicted of the crime, then forfeiture or confiscation of the object or the replacement value or its rendering unusable may be independently ordered if the preconditions under which the measure is prescribed or permitted otherwise exist.
(2) Subsection (1) shall also be applicable under the provisions of Sections 74 subsection (2), no. 2 subsection (3) and 74d, if:
1. prosecution of the crime is barred by the statute of limitations; or
2. for legal reasons no particular person may be prosecuted and the law does not provide otherwise. Confiscation or rendering unusable may not, however, be ordered in the absence of a complaint, authorization, or request for prosecution.
(3) Subsection (1) shall also be applicable if the court dispenses with punishment or if the proceeding is terminated pursuant to a provision which permits this in the discretion of the public prosecution office or the court or with the agreement of both.
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