Recently, the Federal Court of Justice published a decision of the Grand Senate on confiscation in the case of juveniles that was already made in January of this year (Federal Court of Justice, decision dated January 20, 2021 – GSSt 2/20 – LG München II).
In the landmark decision, the judges clarified: The order to confiscate the value of the proceeds of the crime (Section 73c sentence 1 StGB) is also mandatory in the case of juveniles.
New regulation of criminal asset forfeiture in July 2017
Since July 2017, new rules have applied to asset recovery in criminal law.
A significant change is that courts and public prosecutors’ offices can now more easily confiscate assets of unclear origin, even if the origin of the assets cannot be proven beyond doubt. It is now sufficient for the court to be convinced of the illegal origin of assets.
Another significant change relates to the hardship provision of Section 73c of the Criminal Code, old version:
Accordingly, the (then so-called) forfeiture was not ordered insofar as it would have been an undue hardship for the person concerned. The order could also be omitted if the value of the proceeds was no longer available in the assets of the person concerned – in other words, if he had been deprived of his assets.
This hardship provision was shifted to the enforcement proceedings with the reform of asset recovery. This means that the court is now obliged to order confiscation – irrespective of whether the value of the proceeds is still available in the assets of the person concerned or whether confiscation would otherwise cause particular hardship.
For reasons of proportionality, enforcement – i.e. the actual enforcement of confiscation – may at most be withheld. However, enforcement may be resumed at any time.
Application to juveniles – different views of the criminal senates at the Federal Supreme Court.
Until now, it has been disputed whether the new confiscation provisions are also to be applied mandatorily in juvenile criminal law. Some of the case law and literature was of the opinion that the courts have discretionary powers in juvenile criminal law – unlike in general criminal law – and can therefore refrain from ordering confiscation in certain cases.
The 1st Criminal Senate of the Federal Supreme Court had to decide a case in which the Munich II Regional Court had sentenced an adolescent to a juvenile term of four years for particularly serious predatory extortion and multiple acts of fraud. The defendant had received money and goods with a total value of around 17,000 euros as a result of the offenses, but had in the meantime become assetless.
The Regional Court refrained from confiscating the value of the proceeds of the crime. The reason given was that confiscating 17,000 euros would discourage the defendant and expose him to the temptation of committing new crimes. This was not compatible with the idea of education, which was the main basis of juvenile criminal law.
The public prosecutor’s office appealed against the verdict, which was decided by the 1st Criminal Senate. The Senate shared the view of the Regional Court that the confiscation of proceeds of crime and the value of proceeds of crime is not mandatory in juvenile criminal law.
However, both the 2nd and the 5th Criminal Senates had previously decided the opposite and adhered to their interpretation of the law, so that the Grand Senate now had to decide.
Grand Senate decision: No discretion – confiscation mandatory.
The Grand Senate then ruled that the decision on confiscation of the value of proceeds of crime is not at the discretion of the court – i.e. mandatory – even when applying juvenile criminal law.
In justification, he stated on the one hand that the regulation was not in intolerable tension with maxims of juvenile criminal law such as the inadmissibility of fines or the prevailing idea of education.
If, in individual cases, there were reasons against confiscation, these could be taken into account in the course of enforcement, as in the case of adults.
On the other hand, the law simply does not provide for a discretionary decision. If the legislator had wanted to allow a modification in juvenile criminal law, an explicit provision would have been expected.
In conclusion, the Senate notes that it did not have to decide whether the path taken by the legislature was the most expedient of all conceivable solutions.
Possibilities for action.
Whether in juvenile or adult criminal law: It is not uncommon for the greatest burden of a judgment to be the order of confiscation.
We help you to avert confiscation orders as early as possible in the main hearing. But even after the conviction, there are various possibilities to obtain a waiver of the execution of the confiscation order. We will be happy to advise you on this!