Confiscation of proceeds of crime

The confiscation of proceeds of crime is regulated in Sections 73 et seq. of the German Criminal Code (StGB). It serves to seize assets that a person has obtained through or for a criminal offense.

When can the full amount be collected?

Especially when multiple people are involved in a crime, the question often arises whether each person can be held liable for the entire value of the assets obtained through the offense. The answer depends crucially on whether the respective person actually or de facto had control over the assets.

Mere participation in a crime is not automatically sufficient for the attribution of the entire proceeds of the crime.

What does the confiscation of proceeds of crime mean?

According to Sections 73 et seq. of the German Criminal Code (StGB), assets obtained by a perpetrator or accomplice through an unlawful act can be confiscated. It is not solely a matter of who legally owns an asset.

Rather, the decisive factor is whether the asset has actually been transferred to the party involved and whether he has gained actual or factual control over it.

Confiscation can relate, for example, to money, objects, or other economically measurable assets that originate directly from a criminal offense or were obtained as consideration for the offense.

Can a participant in a crime be held liable for the entire proceeds of the crime?

If several persons are involved in a crime and have jointly obtained a financial advantage, the confiscation of the entire proceeds of the crime from several participants may, in principle, be considered.

However, this requires that the respective party actually had co-control over the asset.

The mere fact of being an accomplice or participant is not automatically sufficient. Rather, the decisive factor is whether the person involved actually had the opportunity to access and dispose of the asset.

The party involved does not necessarily have to have actually possessed the entire asset. It can generally be sufficient that they had the actual possibility of unimpeded access to the asset.

What does actual co-determination power mean?

Actual co-determination means that a party involved actually had the opportunity to dispose of the asset.

It is not necessarily relevant whether the person involved was the legal owner of the money or object. What is decisive is the actual economic situation.

For example, joint control may be considered if several perpetrators have joint access to a obtained sum of money and each of them actually has the ability to dispose of this sum.

However, it is not sufficient for a person to have merely participated in the crime without having had access to the acquired assets.

Example

Three people jointly commit fraud. The money obtained is then deposited into an account to which all three people actually have access. In this case, there can be joint actual control over the entire amount.

If, on the other hand, it is only established that a person was involved in the crime but did not actually have access to a certain part of the proceeds, the involvement alone is not automatically sufficient to attribute the entire proceeds of the crime to them.

What did the Federal Court of Justice (BGH) decide in its ruling of March 18, 2026?

In its decision of March 18, 2026 (3 StR 5/26), the Federal Court of Justice once again clarified that participation in a criminal offense and actual control over the resulting assets must be distinguished.

The proceedings addressed, among other things, the question of whether a specific partial amount from fraudulently obtained cash withdrawals could be attributed to the defendant.

The Federal Court of Justice (BGH) objected to the confiscation order. According to the findings of the trial court, it had not been sufficiently established that the defendant actually had access to the relevant partial amount.

The central message of the decision can therefore be summarized as follows:

Joint and several confiscation of the entire proceeds of a crime requires that each participant actually has co-control over the proceeds. Mere participation in the crime is insufficient.

In practice, this means that confiscation requires not only establishing that a person was involved in the crime, but also examining the actual value of the assets they obtained and whether they had actual control over the entire proceeds of the crime.

What does "joint and several" collection mean?

If several perpetrators jointly had actual control over the same proceeds of the crime, confiscation can be ordered against several perpetrators, taking into account this joint responsibility.

The state may not receive the asset in question multiple times. For example, if the same amount is allocated to several parties, this should not result in the state collecting this amount multiple times.

In this context, the legal system uses the term joint and several liability or collection.

However, it is important to note that a criminal confiscation order is not simply equivalent to joint and several liability under civil law pursuant to Sections 421 et seq. of the German Civil Code (BGB).

The confiscation order does not, in particular, establish any civil claim between the perpetrators. Rather, it regulates the extent to which the state may confiscate the assets obtained through the crime.

A possible settlement between the parties involved is to be distinguished from this and may arise from the internal relationship depending on the circumstances of the individual case.

Why is actual control important for defendants?

Confiscation can have significant financial consequences for the accused. It can therefore be crucial whether the investigating authorities and the court can actually establish that a person acquired the asset in question or was able to dispose of it.

The following questions, among others, may play a role:

• Who actually had access to the money or the item?

• Who had access to an account or an asset?

• Did multiple parties have joint access?

• Did the accused actually have the opportunity to use the entire amount?

• What specific financial benefit has actually accrued to the respective person?

Participation in a crime does not automatically answer these questions.

That is precisely why, in criminal proceedings, the distinction between the Participation in the crime and the actual acquisition or control over the proceeds of the crime They can be distinguished.

Conclusion

The confiscation of proceeds of crime can also be ordered against several perpetrators. However, mere participation in a crime does not automatically mean that each participant can be held responsible for the entire proceeds. Rather, the decisive factor is whether the respective participant actually obtained the asset or had actual or de facto control over it.