Asset Seizure: Effective Safeguarding Measures in Criminal and Tax Law
Purpose and Aim: Asset seizure is used to secure assets for potential claims and often acts as a deterrent in tax criminal proceedings.
Types of Asset Seizure: There are two types – asset seizure under § 111e of the German Code of Criminal Procedure (StPO) and the civil seizure order under § 324 of the German Fiscal Code (AO), which can be issued by tax authorities.
Requirements and Process: Typically ordered by a court, but in urgent cases, the public prosecutor’s office may enforce it. Probable cause and a need for security are required.
Legal Remedies for Those Affected: Various legal remedies are available, such as filing a complaint against the court’s decision or requesting judicial review if the seizure is ordered by the public prosecutor’s office.
Double Burden by Tax Authorities: In tax-related cases, asset seizure can also be ordered by tax authorities under § 324 AO, adding additional burden for those affected.
The asset seizure in tax criminal proceedings allows the confiscation of assets from the affected person. In addition to serving as a deterrent for future tax offenses, the purpose of this coercive measure is to secure the injured party’s right to compensation by safeguarding the assets. A distinction can be made between asset seizure under § 111e of the Code of Criminal Procedure (StPO) and the attachment of property under § 324 of the Fiscal Code (AO).

Asset Seizure According to § 111e of the Code of Criminal Procedure (StPO)
Less known to the general public than pre-trial detention, the asset seizure in criminal proceedings according to § 111e of the Code of Criminal Procedure (StPO) is one of the most severe coercive measures in criminal procedure. The conditions for asset seizure are less stringent than the significant legal consequences for those affected might suggest—enough reason to outline these conditions below and to present the legal remedies available to a defendant against the asset seizure.
From a formal standpoint, asset seizure according to § 111e StPO generally requires an order from the competent court; in the exceptional case of imminent danger, an order may be issued by the public prosecutor’s office, as stated in § 111j StPO.
When the court orders asset seizure, this follows a request from the public prosecutor to the court competent according to § 162 StPO. This results in the investigating judge at the district court where the public prosecutor’s office is located being responsible during the preliminary proceedings, as stated in § 162(1) Sentence 1 StPO. The order is issued by the court handling the case after the indictment is filed, § 162(3) Sentence 1 StPO, while the appellate court is responsible for the order upon receipt of the case files. The court whose decision is being contested is then responsible during the appeal process according to § 162(3) Sentence 2 StPO. The judicial decision consists of a written ruling that requires justification.
Less frequently—only in cases of imminent danger, as per § 111j(1) Sentence 2 StPO—does the public prosecutor’s office have the authority to order asset seizure. After issuing the order, the public prosecutor must request confirmation of this measure from the competent court within one week.
In substantive terms, the conditions for asset seizure are on the lower end: a preliminary suspicion, a valid seizure claim, a need for safeguarding, and the proportionality of the coercive measure, taking into account temporal limits, are sufficient to trigger the asset seizure.
Specifically, the preliminary suspicion according to § 152(2) StPO requires that it must appear at least possible, based on criminalistic experience, that a prosecutable offense has been committed. Therefore, asset seizure can be ordered as early as the beginning of the preliminary investigation.
The valid seizure claim, as a concrete manifestation of the preliminary suspicion within the context of asset seizure, requires that there are sufficient indications to assume that the defendant will be obliged to pay compensation for value due to crimes committed by them after the conclusion of the proceedings. It must thus be evident that the conditions for ordering the confiscation of value after the conclusion of the criminal proceedings will be met. The details regarding confiscation are governed by §§ 73 et seq. of the Criminal Code (StGB).
A limitation that should not be underestimated in light of Article 14(1) of the Basic Law (GG) is the specific need for safeguarding, which, as an aspect of proportionality, is explicitly inherent in the StPO and requires the necessity and appropriateness of the asset seizure. In addition to these two conditions, further objective circumstances must be present that justify, in a comprehensive assessment of the individual case, the conclusion that an order for asset seizure is necessary to secure enforcement—such as if the defendant is unwilling to disclose their financial situation or there are indications of attempts to conceal their actual assets.
This fundamental principle of proportionality broadly influences the ordering of asset seizure according to § 111e StPO. The need for safeguarding the general public and the fundamental right of the affected party protected under Article 14 GG must be weighed and balanced during the ordering of asset seizure. This is particularly evident in the temporal aspect of the asset seizure—even though the proportionality of the asset seizure may justifiably be questioned after a duration of approximately six months, the limit of proportionality must ultimately be understood concretely and assessed on a case-by-case basis.
Of course, a person affected by asset seizure is not defenseless. Various legal remedies are available to the affected party, depending on which authority ordered the asset seizure:
If the asset seizure is ordered by the court, the affected party has the right to file a simple complaint according to § 304 StPO before the district court. If the district court decides against the complaint, the decision regarding the order then falls to the regional court as the appellate court. Further action against a decision of this court is only possible if the seizure exceeds an amount of €20,000, as stated in § 310(1) No. 3 StPO. Additionally, after a certain duration of proceedings, it is advisable to submit a request for the lifting of the asset seizure.
Against an order issued by the public prosecutor’s office, the affected party can contest this by filing a request for a court decision. If the court finds the asset seizure and the ordering authority of the public prosecutor’s office lawful in light of existing imminent danger, a simple complaint according to § 304(1) No. 3 StPO is permissible against the court’s decision, and if applicable, a further complaint according to § 310(1) No. 3 StPO can also be pursued.
Asset Seizure According to § 324 of the Fiscal Code (AO)
The intensity of interference of the asset seizure is significantly increased by the fact that, in tax criminal proceedings, in addition to § 111e StPO, the tax authorities have the option to take parallel action against the tax debtor based on § 324 AO. Not only is the potential double burden itself problematic, but also the early point at which the tax authorities can secure the tax claim: it is sufficient for the claim to arise from the tax obligation according to § 38 AO. In contrast, the ordering authority of the tax authority is subject to strict deadlines in this approach.
If the tax authority orders an attachment of property according to § 324 AO, the affected party has numerous legal protection options available. According to § 33(1) No. 2 FGO, they have the right to approach the tax courts. Additionally, the affected party can file a request for a temporary order or suspension of enforcement.
Do I Need a Lawyer as Someone Affected by Asset Seizure?
Since it is not uncommon for you to be obligated to surrender your assets both through an asset seizure according to § 111e StPO and through the tax authorities via the attachment of property according to § 324 AO, this double burden particularly emphasizes the need to seek professional legal advice. The substantive and timely selection of an appropriate legal remedy should be prepared by a specialized lawyer.
To file a legal remedy that is meaningful in your specific case and ideally to achieve a swift lifting of the asset seizure order, it is essential to contact a lawyer specializing in criminal law and tax criminal law.
Should you have any further questions or be a defendant in a criminal or tax proceeding (tax criminal proceeding), please feel free to contact us.