Seizure in Criminal Proceedings
Sections 94 et seq. of the German Code of Criminal Procedure (StPO) govern the securing of items that may be relevant as evidence in criminal proceedings. The purpose of seizure is to protect the criminal proceedings against the loss of evidence.
General Principles of Seizure
Section 98 StPO regulates the procedure for seizure for evidentiary purposes and the formal securing of driving licences under Section 94 (3). If movable items or licences are voluntarily handed over by the person in possession, no formal seizure is required (§ 94 (2) StPO). In these cases, Section 98 does not apply. However, the person concerned may at any time request a judicial decision.
Judicial Order for Seizure
Seizure orders are generally issued by a judge, especially in cases covered by § 98 (1) sentence 2 StPO. Judicial involvement ensures independent review.
The order must meet certain requirements:
- Reference to specifically identified items.
- Specification of the alleged offence.
- Clarification of the purpose of seizure, documented in the case file.
The use of standard forms or blanket references to other documents in the file is not permitted. However, a detailed explanation of the evidentiary relevance of every single document is not required.
A seizure order may, in principle, be issued at the same time as a search order, though this is usually impractical.
Jurisdiction
- In tax criminal proceedings: Applications for search and seizure may be made by the tax authorities (§ 399 (1), § 386 (2) Fiscal Code). The investigating judge is not bound by the public prosecutor’s legal opinion and independently reviews whether there are sufficient factual indications of an offence.
- Before indictment: The competent court is the Local Court (Amtsgericht) in whose district the public prosecutor’s office is located (§ 162 (1) StPO).
- After indictment: The court dealing with the case decides on seizure orders, outside the main hearing, in the composition prescribed for decisions (§ 98 (2) StPO). Competence is limited to evidence related to the pending case.
Execution of Seizure Orders
The execution of seizure orders always lies with the public prosecutor, who may issue instructions to the police.
Legal Remedies
- During enforcement: The person concerned may apply for a judicial decision on how a seizure is carried out, particularly if they object to the method of enforcement.
- Complaint: A continuing judicial seizure order may be challenged by lodging a complaint (§ 304 StPO).
Termination of Seizure
- Final judgment: With the finality of the judgment, the seizure expires.
- Special protection: Section 97 (2) StPO prohibits seizure of items in the custody of the defence lawyer, ensuring the right to effective defence. This rule also applies to communications from the lawyer in the custody of the accused and to documents prepared by the accused for their defence.
If surrender is refused, enforcement measures (orders, coercion) may be applied under § 95 (2) StPO. This does not apply to persons with a right to refuse testimony.
The seizure of items subject to confiscation or forfeiture is governed by §§ 111b et seq. StPO.
Defence Support in Tax Criminal Law
We provide immediate support in cases involving tax criminal law, voluntary disclosure and criminal defence. Our experienced attorneys defend your rights in seizure proceedings and protect against unlawful investigative measures.
FAQ: Seizure in Criminal Proceedings
1) Who can order a seizure?
In principle, only a judge can order seizure, ensuring independent judicial review. In urgent cases, prosecutors or police may act temporarily.
2) Can my lawyer’s files be seized?
No. Section 97 StPO protects items in the custody of the defence lawyer, as well as communications intended for the defence.
3) What can I do if I disagree with a seizure?
You may apply for a judicial review of the seizure or lodge a complaint against the order.
4) Does seizure expire automatically?
Yes. Once the judgment becomes final, the seizure ends unless confiscation or forfeiture rules apply.
5) What happens in tax proceedings?
In tax-related criminal cases, the tax authorities may apply for search and seizure, but the court independently examines the evidence.
Contact Us – Your Criminal Defence Lawyers in Frankfurt and Nationwide
- Dr. Caroline Jacob, Specialist Lawyer for Criminal Law
- Frank M. Peter, Specialist Lawyer for Criminal Law
- Dr. Sven Henseler, Criminal Defence Lawyer, Diplom-Finanzwirt (FH)
- Of Counsel: Prof. Dr. Frank Peter Schuster
- Cooperation Partner: Tax Consultant and former Tax Investigator Frank Wehrheim
Our law firm Buchert Jacob Peter has been specialising in criminal defence for more than 25 years in Frankfurt am Main. We represent clients throughout Germany.
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