Higher Regional Court of Bremen on confiscation in cases of illegal gambling under Section 284 of the German Criminal Code

In its judgment of September 12, 2025 – 1 ORs 14/25, the Higher Regional Court of Bremen issued a significant ruling for gambling criminal law concerning the confiscation of assets in cases of unauthorized gambling (§ 284 of the German Criminal Code). The central question was which assets, when organizing unauthorized gambling, are to be considered "obtained through the act" within the meaning of § 73 para. 1 of the German Criminal Code.

The Higher Regional Court of Bremen essentially confirms the gross principle of criminal asset forfeiture: If the organizer receives the stakes himself, the entire amount of the stakes can be confiscated. confiscation They are subject to penalties. A reduction to the profit actually remaining with the perpetrator is generally not an option.

The facts

The proceedings were based on the installation and operation of unauthorized amusement machines in a side room of an arcade. Players wagered considerable sums of money on these machines. In calculating the amount to be confiscated, the Bremen Regional Court did not base its decision on the total stakes, but rather on the amount that remained economically viable for the defendant, i.e., the net profit.

The public prosecutor's office appealed this decision.

The Higher Regional Court of Bremen overturned the Regional Court's decision regarding the confiscation and ordered the confiscation of €440,000. The decisive question was whether the winnings paid out to the players could be deducted when determining the amount of the confiscation.

Section 73 of the German Criminal Code: What did the organizer of the gambling obtain?

According to Section 73 Paragraph 1 of the German Criminal Code, the court orders the confiscation A criminal offense is committed when the perpetrator or accomplice has obtained something through or for an unlawful act. According to the Higher Regional Court of Bremen, a gambling operator generally acquires the stakes as soon as they actually flow to him before the game is conducted and he has the power to dispose of them. The decisive factor is therefore the actual control over the asset. If the stakes are transferred to the operator, he has generally obtained a financial advantage within the meaning of Section 73 of the German Criminal Code (StGB). The fact that a portion of the stakes is later paid out to the players does not negate this influx of assets.

The gross principle in collection

The decision is related to the gross principle applicable in criminal asset forfeiture. According to this principle, it is not merely the perpetrator's net economic profit that is subject to forfeiture. Rather, the decisive factor is the asset value that the perpetrator directly obtained through the unlawful act.

For illegal gambling, this means: If players wager a total of 440,000 euros and the organizer pays out 290,000 euros of this as winnings, he initially retains 150,000 euros economically.

For the confiscation However, the entire amount of 440,000 euros can still be relevant if the organizer has actually gained control over all the game stakes.

Criminal asset confiscation is therefore not automatically based on the amount of profit remaining after the gambling operations have been carried out.

No crediting of profit distributions

The handling of payouts to players is of particular importance.

The Higher Regional Court of Bremen generally considers these expenses to be costs incurred in carrying out the crime. Their deductibility as profit-reducing expenses is generally excluded under Section 73d Paragraph 1 Sentence 2 of the German Criminal Code.

This makes it necessary to distinguish between what was obtained and the perpetrator's economic gain.

Significance for online casinos and other gambling offers

The decision is particularly relevant for proceedings relating to illegal online gambling, online casinos and other gambling offers, insofar as the respective elements of the offense and attribution requirements are met.

For the defense, the specific attribution and the extent of actual control over the gambling stakes can therefore be particularly important. Not every sum of money that is economically connected to a gambling offer is automatically an asset obtained by the perpetrator.

This applies particularly if the perpetrator only held a so-called transitory asset position over certain funds and did not gain actual control over them. The specific structure of the payment methods and business relationships can therefore be decisive for the amount to be confiscated.

Conclusion

The central tenet of the Bremen Higher Regional Court's ruling can be summarized as follows: If the organizer of an illegal gambling operation obtains the stakes themselves and gains control over them, the entire stake can, in principle, be subject to confiscation as an asset obtained through the offense. Winnings subsequently paid out to players are generally not deductible as expenses reducing profits.

In practice, this means that the confiscation In proceedings concerning illegal gambling, this should not be treated merely as a secondary issue. In addition to examining the prerequisites for criminal liability under Section 284 of the German Criminal Code (StGB), a precise analysis of the payment flows, the actual control over the assets, and the attribution of individual assets is necessary.

By Christian Hermanussen, LL.M.
Lawyer and specialist lawyer for criminal law in Hamburg
Focus: Criminal defense and white-collar crime
Published on August 21, 2026