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from Part II - Substantive Provisions on Extended Confiscation
Published online by Cambridge University Press: 11 October 2018
THE DEVELOPMENT OF THE MEASURE OF EXTENDED CONFISCATION IN GERMAN LAW
Indem der Staat dem Täter deliktisch Erlangtes wegnimmt, führt er ihm, wie auch der Rechtsgemeinschaft, vor Augen, dass strafrechtswidrige Bereicherungen nicht geduldet werden und Straftaten sich nicht lohnen.
The German provisions on confiscation and forfeiture of property and proceeds of crime are found in the Criminal Code (“Strafgesetzbuch”, hereafter“ StGB”) and the Criminal Procedural Code (“Strafproce ß ordnung”, hereafter “StPO”). As already mentioned in Section 1.3.3 above, the legislation differs in the use of two measures; “Verfall” (forfeiture) and “Einziehung ” (seizure). Generally speaking, “Verfall” is used regarding the recovery of something that the defendant has acquired through a criminal offence or for its commission. Such provisions are found in Section 73 et seq. StGB. “Einziehung”, on the other hand, refers to the recovery of any instruments or objects which were generated by a crime, or used in its commission or preparation. Such provisions – which for example relate to certain dangerous items − are found in Section 74 et seq. StGB
In German law extended confiscation is provided for in the provision on “erweiterter Verfall” in Section 73d StGB. This measure was introduced as early as 1992 by the Act against Organised Crime, as a result of a reform of many different areas of criminal law and procedural law with the German legal system in order to create more effective means to prevent and deal with organised criminality. Many rather far-reaching proposals had been made by the legislator during the legislative process, for example regarding new investigative measures like bugging etc. The importance of a profit-oriented law enforcement approach was also strongly emphasised in the legislative works:
Die Organisierte Kriminalität ist zu einer Herausforderung für Staat und Gesellschaft geworden … Triebfeder für die Organisierte Kriminalität ist das Gewinnstreben.
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