Part 4 Mutual Assistance through the Execution of Decisions and Orders of the Court
§ 40 Principle
Orders of forfeiture pursuant to Article 77 para. 2(b) of the Rome Statute as well as decisions under Article 75 of the Rome Statute shall also be enforced.
Part 4 Mutual Assistance through the Execution of Decisions and Orders of the Court
§ 44 Enforcement of Forfeiture Orders
(relating to Article 77 para. 2(b), Article 109 para. 2 of the Rome Statute)
(1) Orders pursuant to Article 77 para. 2(b) of the Rome Statute (Forfeiture Orders) shall be enforced when:
1. requested by the Court upon presentation of a complete final and enforceable court ruling on guilt and punishment, and
2. the objects at issue are located in Germany.
(2) To effect enforcement, the court shall order forfeiture of the object. § 73 para. 2-4, §§ 73a and 73b of the Criminal Code apply mutatis mutandis.
(3) If the forfeiture of an object is ordered, ownership of the object or the forfeited right, upon the approval of the mutual assistance, transfers through the office responsible pursuant to § 68 para. 1 to the Court, when the party affected by the order was at that time the owner thereof. Prior to the authorization, the order has the effect of a prohibition on sale within the meaning of § 136 of the Civil Code (Bürgerliches Gesetzbuch); the prohibition also encompasses other dispositions than sale. Objects, the forfeiture of which has been ordered, will be surrendered to the Court upon approval of the mutual assistance.
(4) To the extent that a forfeiture order of the Court contains a decision regarding the rights of third parties, these are binding, unless:
1. the third party obviously did not have the opportunity to enforce his rights,
2. the decision cannot be reconciled with a domestic civil law decision reached in
the same matter, or
3. the decision relates to the rights of third parties to real property or real property rights located in Germany; priority notices also constitute third party rights.
If one of the cases in sentence 1 exists, the Court shall have the opportunity to provide comments in the proceedings under § 68 para. 1. The rights of third parties to the objects remain to the extent foreseen by the Statute. Third parties who, under the circumstances of the case could exercise rights over the object, shall have, prior to a ruling, the opportunity to provide comments to the extent they have not already been able to provide comment to the Court. They may use legal assistance at each stage of the proceedings.
(5) To the extent an order for the forfeiture of an object is under consideration based upon a request of the Court, it may be seized to guarantee the forfeiture. To this end, a search may also be undertaken. Jurisdiction is determined in accordance with § 46 para. 3. In addition, §§ 111b – 111h and 111l of the Criminal Procedure Code apply mutatis mutandis. § 111k applies mutatis mutandis with the exception that prior to return to the injured party, the opinion of the Court shall be obtained; return shall not occur insofar as the Court in its opinion is against it.
Part 4 Mutual Assistance through the Execution of Decisions and Orders of the Court
§ 46 Jurisdiction, Appeal to the Federal Supreme Court, Legal Assistance
(1) The office responsible for the enforcement of prison sentences of the Court (§§ 41 and 42) is the public prosecution office attached to the Higher Regional Court in whose district the institution is located in which the convicted person is in custody.
(2) Jurisdiction for the enforcement of monetary fines per § 43 and Restitution Orders per § 45 lies with the public prosecution office attached to the Higher Regional Court in whose district the convicted person has his legal residence or, in the absence thereof, where he habitually resides. If the legal or habitual residence cannot be determined, jurisdiction lies with the public prosecution office attached to the Higher Regional Court in whose district objects belonging to the convicted person are situated. If objects are situated in the districts of different Higher Regional Courts, jurisdiction is determined based upon which public prosecution office was first involved in the matter. For as long as jurisdiction under sentences 1-3 cannot be determined, jurisdiction is determined by the seat of the federal government. The necessary judicial orders shall be made by the Higher Regional Court. Rulings by the Higher Regional Court are non-appealable.
(3) The judicial orders required for enforcement of an order of forfeiture of the Court (§ 44) shall be made the Higher Regional Court. Para. 2 sentence 6 applies mutatis mutandis. The public prosecution office attached to the Higher Regional Court shall prepare the decisions. Local jurisdiction lies with the Higher Regional Court and the public prosecution office attached to the Higher Regional Court in whose district the object is situated. If objects are situated in the districts of different Higher Regional Courts, jurisdiction is determined based upon which Higher Regional Court or, as long as no Higher Regional Court is involved, upon which public prosecution office was first involved in the matter. For as long as jurisdiction under sentence 2 or sentence 3 cannot be determined, jurisdiction is determined by the seat of the federal government.
—Confiscatory expropriation order—
Confiscatory expropriation order
(1) If the law refers to this provision the court may, in addition to imprisonment for life or for a fixed term of more than two years, order payment of a sum of money the amount of which shall be limited by the value of the offender’s assets (confiscatory expropriation order). Material benefits which have been confiscated shall not be taken into account when assessing the value of the assets. The value of the assets may be estimated.
(2) Section 42 shall apply mutatis mutandis.
(3) The court shall indicate a term of imprisonment which shall be substituted if the amount cannot be recovered (default imprisonment). The maximum term of default imprisonment shall be two years, its minimum one month.
CONFISCATION AND DEPRIVATION ORDERS
Conditions of confiscation
(1) If an unlawful act has been committed and the principal or a secondary participant has acquired proceeds from it or obtained anything in order to commit it, the court shall order the confiscation of what was obtained. This shall not apply to the extent that the act has given rise to a claim of the victim the satisfaction of which would deprive the principal or secondary participant of the value of what has been obtained.
(2) The order of confiscation shall extend to benefits derived from what was obtained. It may also extend to objects which the principal or secondary participant has acquired by way of sale of the acquired object, as a replacement for its destruction, damage to or forcible loss of it or on the basis of a surrogate right.
(3) If the principal or secondary participant acted for another and that person acquired anything thereby, the order of confiscation under subsections (1) and (2) above shall be made against him.
(4) The confiscation of an object shall also be ordered if it is owned or subject to a right by a third party, who furnished it to support the act or with knowledge of the circumstances of the act.
Confiscation of monetary value
(1) To the extent that the confiscation of a particular object is impossible due to the nature of what was obtained or for some other reason or because confiscation of a surrogate object pursuant to section 73
(2) 2nd sentence has not been ordered, the court shall order the confiscation of a sum of money which corresponds to the value of what was obtained. The court shall also make such an order in addition to the confiscation of an object to the extent that its value falls short of the value of what was originally obtained.
Assessment of value
The scope of what was obtained and its value as well as the amount of the victim’s claim the satisfaction of which would deprive the principal or secondary participant of that which was obtained may be estimated.
(1) Confiscation shall not be ordered to the extent it would constitute an undue hardship for the person affected. The order may be waived to the extent the value of what was obtained is no longer part of the affected person’s assets at the time of the order or if what was obtained is only of minor value.
(2) As to conditions of payment section 42 shall apply mutatis mutandis.
(1) If an unlawful act has been committed pursuant to a law which refers to this provision, the court shall also order the confiscation of objects of the principal or secondary participant if the circumstances justify the assumption that these objects were acquired as a result of unlawful acts, or for the purpose of committing them. The 1st sentence shall also apply if the principal or secondary participant does not own or have a right to the object merely because he acquired the object as a result of an unlawful act or for the purpose of committing it. Section 73(2) shall apply mutatis mutandis.
(2) If the confiscation of a particular object has, after the act, become impossible in whole or in part section 73a and section 73b shall apply mutatis mutandis.
(3) If after an order of confiscation pursuant to subsection (1) above, due to another unlawful act which the principal or secondary participant committed before that order, a decision must again be taken as to the confiscation of objects of the principal or secondary participant, the court in doing so shall take into account the previous order.
(4) Section 73c shall apply mutatis mutandis.
Effect of confiscation
(1) If the confiscation of an object is ordered title to the property or the right confiscated shall pass to the state once the order becomes final if the person affected by the order has a right to it at the time. The rights of third parties in the object remain unaffected.
(2) Prior to its becoming final the order shall have the effect of a prohibition to sell within the meaning of section 136 of the Civil Code ; the prohibition shall also cover dispositions other than sales.
Conditions of deprivation
(1) If an intentional offence has been committed objects generated by or used orintended for use in its commission or preparation, the court may make a deprivation order.
(2) A deprivation order shall not be admissible unless
1. the principal or secondary participant owns or has a right to the objects at the
time of the decision ; or
2. the objects, due to their nature and the circumstances, pose a danger to the
general public or if there is reason to believe that they will be used for the commission of unlawful acts.
(3) Under the provisions of subsection (2) No 2 above the deprivation of objects shall also be admissible if the offender acted without guilt.
(4) If deprivation is prescribed or permitted by a special provision apart from subsection (1) above, subsections (2) and (3) above shall apply mutatis mutandis.
Extended conditions of deprivation
If the law refers to this provision, objects may be subject to a deprivation order as an exception to section 74(2) No 1 if at the time of the decision the person who owns or has a right to them
1. at least with gross negligence contributed to the property or the right being the object of or being used for the act or its preparation ; or
2. acquired the objects dishonestly with knowledge of the circumstances that would have allowed their deprivation.
Principle of proportionality
(1) If deprivation is not otherwise prescribed it may not be ordered in cases under section 74(2) No 1 and section 74a if it is disproportionate to the significance of the act committed and the blameworthiness of the principal or secondary participant or of the third party in cases of section 74a.
(2) In cases under section 74 and section 74a the court shall defer the deprivation order and impose a less incisive measure if the purpose of a deprivation order can also be attained thus. Particular consideration shall be given to instructions
1. to destroy the objects ;
2. to remove particular fittings or distinguishing marks from or otherwise modify the objects ; or
3. to dispose of the objects in a specified manner.
If the instructions are carried out the deferment order shall be rescinded; otherwise the court shall subsequently order the deprivation.
(3) If deprivation is not otherwise proscribed it may be limited to a part of the objects.
Deprivation of monetary value
(1) If the principal or secondary participant has used, particularly disposing of it or consuming it, the object which he owned or had a right to at the time of the offence and which could have been subject to deprivation, or if he has otherwise obstructed the deprivation of the object, the court may order the deprivation from the principal or secondary participant, of a sum of money no greater than the amount equivalent to the value of the object.
(2) The court may also make such an order in addition to the deprivation of an object or in place thereof, if the principal or secondary participant has, prior to the decision on the deprivation, encumbered it with the right of a third party, the extinguishment of which cannot be ordered without compensation or could not be ordered in the case of deprivation (section 74e(2) and section 74f); if the court makes the order in addition to the deprivation, then the amount of the surrogate value shall be assessed according to the value of the encumbrance.
(3) The value of the object and the encumbrance may be estimated.
(4) As to conditions of payment section 42 shall apply mutatis mutandis.
Deprivation and destruction of publication media
(1) Written materials (section 11(3)) of a content every intentional dissemination of which with knowledge of the content would fulfil the elements of a criminal provision, shall be subject to a deprivation order if at least one copy was disseminated through an unlawful act or was intended for such dissemination. At the same time the equipment used for or intended for the production of the written material, such as plates, frames, type, blocks, negatives or stencils, shall be destroyed.
(2) The deprivation shall extend only to those copies which are in the possession of the persons involved in their dissemination or preparation or which have been publicly displayed or, if they were sent for dissemination, have not yet been distributed to the recipient.
(3) Subsection (1) above shall apply mutatis mutandis to written materials (section 11(3)) of a content the intentional dissemination of which with knowledge of the content would fulfil the elements of a criminal provision only under additional circumstances. Deprivation and destruction shall not be ordered unless
1. the copies and the objects indicated in subsection (1) 2nd sentence above are in the possession of the principal or secondary participant or another on whose behalf the principal or secondary participant acted, or are intended by these people for dissemination ; and
2. the measures are required to prevent any unlawful dissemination by these persons.
(4) Dissemination within the meaning of subsections (1) to (3) above shall also mean providing access to written material (section 11(3)) or at least one copy of it to the public by putting it on display, putting up posters, performances or other means.
(5) Section 74b(2) and (3) shall apply mutatis mutandis.
Effect of deprivation
(1) If the deprivation of an object is ordered, title to the property or the right ordered deprived shall pass to the state once the order becomes final.
(2) The rights of third parties in the object remain unaffected. The court shall order the cessation of these rights if it bases the deprivation on the fact that the conditions of section 74(2) No 2 are met. It may also order the cessation of the rights of a third party if no compensation is due to him pursuant to section 74f(2) Nos 1 or 2.
(3) Section 73e(2) shall apply mutatis mutandis to the order of deprivation and the order deferring deprivation before they have become final.
(1) If a third party had title to the property or to the right ordered deprived at the time the decision on deprivation or destruction became final or if the object was encumbered by a right of a third party which was extinguished or prejudiced by the decision, the third party shall be adequately compensated in money from the public treasury, taking into consideration the fair market value.
(2) Compensation shall not be granted if
1. the third party at least with gross negligence contributed to the property or the right being the object of or being used for the act or its preparation,
2. the third party acquired the objects or the right dishonestly with knowledge of the circumstances that would have allowed their deprivation, or
3. it would be lawful under the circumstances which justified the deprivation or destruction, to deprive the third party permanently of the object and without compensation on the basis of provisions outside the criminal law.
(3) In cases under subsection (2) above the court may grant compensation to the extent that it would constitute an undue hardship to deny it.
Special provision for organs and representatives If a person commits an act
1. in his capacity as an organ authorised to represent a legal entity or as a member of such an organ ;
2. in his capacity as a director or member of board of directors of an association lacking independent legal capacity ;
3. as a partner authorised to represent a partnership with independent legal capacity ; or
4. as an authorised representative with full power of attorney or in a management position as general agent or authorised representative, with a commercial power of attorney, of a legal entity or association listed in Nos 2 or 3 above ; or
5. as another person acting in a responsible capacity for the management of the business or enterprise of a legal entity or association listed in Nos 2 or 3 above, including the supervision of the management of the business, or other exercise of controlling powers in a senior management position,
which in relation to him and under the other conditions of sections 74 to 74c and section 74f would allow the deprivation of an object or its surrogate value or justify the denial of compensation,his act shall be attributed and these provisions applied to the person or entity represented. Section 14(3) shall apply mutatis mutandis.
Subsequent orders for confiscation or deprivation of monetary value
If an order for confiscation or deprivation of an object is not enforceable or inadequate
because after making it one of the conditions indicated in section 73a, section 73d(2), or section 74c has arisen or come to its attention, the court may subsequently order the confiscation or deprivation of the monetary value.
(1) If for reasons of fact no person can be prosecuted or convicted of the offence, confiscation or deprivation of the object or the monetary value or destruction must or may be independently ordered if the conditions under which the measure is prescribed or available otherwise are met.
(2) Subsection (1) above shall, under the provisions of section 74(2) No 2, (3) and section 74d, apply if
1. prosecution of the offence is barred by the statute of limitations ; or
2. for other reasons of law no person may be prosecuted and the law does not provide otherwise.
Deprivation or destruction must not be ordered in the absence of a request or authorisation to prosecute or a request by a foreign state.
(3) Subsection (1) above shall apply if the court orders a discharge or if the proceedings are terminated pursuant to a provision allowing this in the discretion of either the public prosecution service or the court or with their mutual agreement.
1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law.
2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.
3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.