Section 88 Principle

Outside of the area of application of Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders (OJ L 303, 28.11.2018, p. 1) (Freezing and Confiscation Regulation), assistance in matters relating to the enforcement of judgments which is rendered to another Member State of the European Union in accordance with the provisions of Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition of confiscation orders (OJ L 328, 24.11.2006, p. 59), as amended by Framework Decision 2009/299/JHA (OJ L 81, 27.3.2009, p. 24) and Regulation (EU) 2018/1805 (OJ L 303, 28.11.2018, p. 1) (Framework Decision on Confiscation), is governed by sections 88a to 88f. In the absence of special provision made under this Division or if the request is not made in accordance with the provisions set out in the Framework Decision on Confiscation, the provisions of Part 4 and the general provisions of Part 1 and Part 7 of this Act apply.


Section 88a
Conditions governing permissibility

(1) In derogation from section 49 (1), enforcement of a court order for confiscation transmitted in accordance with the provisions of the Framework Decision on Confiscation relating to a specific sum of money or asset is only permissible if

1. a competent authority in another Member State of the European Union has made a request to that effect and submitted the documentation referred to in section 88b and

2. notwithstanding any procedural obstacles and, where applicable, in the case of analogous conversion of the facts, such an order could also have been made under German law in respect of the offence giving rise to the foreign order for confiscation, whereby
a) with the exception of requests for the enforcement of a measure which corresponds to section 73a or 74a of the Criminal Code, no double criminality check is carried out if the offence giving rise to the request is punishable by a sentence of imprisonment of a maximum of at least three years under the law of the requesting Member State and belongs to one of the categories of offences listed in Article 6 (1) of the Framework Decision on Confiscation and
b) enforcement in relation to taxes, duties, customs duties and currency exchange activities is also permissible even if German law does not impose the same kind of taxes or duties or does not contain the same kind of provisions on taxes, duties, customs duties or currency exchange activities as the law of the requesting Member State.

(2)  Enforcement of an order for confiscation transmitted in accordance with subsection (1) is not permissible if

1. the offence was committed in Germany or on one of the means of transport referred to in section 4 of the Criminal Code and is not punishable under German law;

2. the person concerned did not appear in person at the hearing which led to the order for confiscation;

3. final sentence has already been passed upon the person concerned in a Member State other than the requesting Member State for the same offence which gave rise to the request, provided that this sanction has already been enforced, is currently being enforced or can no longer be enforced under the law of the sentencing state, unless confiscation could be ordered separately in accordance with section 76a of the Criminal Code;

4. enforcement, in the case of criminal offences to which German criminal law applies, is statute-barred under German law, unless an order for confiscation could be made in accordance with section 76a (2) of the Criminal Code.

(3)  Enforcement of an order for confiscation transmitted in accordance with subsection (1) is, however, permissible in derogation from subsection (2) no. 2 if
1. the person concerned
a) in due time
aa) was summoned in person to the hearing which led to the judgment or
bb) actually received official information by other means of the scheduled date and place of the hearing which led to the judgment in such a manner that it was unequivocally established that the person concerned was aware of the scheduled hearing and
b) was informed that a decision may also be given in absentia,

2. the person concerned, being aware of the proceedings being conducted against him or her in which defence counsel participated, prevented a personal summons by absconding or

3. the person concerned, being aware of the scheduled hearing, mandated legal counsel to defend him or her at the hearing and was indeed defended by legal counsel at the hearing.

(4) Enforcement of an order for confiscation transmitted in accordance with subsection (1) is also permissible, in derogation from subsection (2) no. 2 if, following service of the decision, the person concerned

1. expressly stated that he or she does not contest the decision given or

2. did not request a retrial or file an appeal on points of fact and law within the applicable time limits.

Persons concerned must first expressly have been instructed about their right to a retrial or to an appeal on points of fact and law in which they have a right to participate and in which the merits of the case, including fresh evidence, may be re-examined and which may lead to the original decision being reversed.

Section 94
Request for freezing, seizure and search

(1) Outside of the area of application of the Freezing and Confiscation Regulation, section 58 (3) and section 67 apply to requests made in accordance with the provisions of Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ L 196, 2.8.2003, p. 45), as amended by Regulation (EU) 2018/1805 (OJ L 303, 28.11.2018, p. 1) (Framework Decision on Freezing of Property or Evidence), whereby

1. no double criminality check is carried out if the offence giving rise to the request is punishable, under the law of the requesting state, by a sentence of imprisonment of a maximum of at least three years and belongs to one of the categories of offences listed in Article 3 (2) the Framework Decision on Freezing of Property or Evidence,

2. a request in relation to taxes, duties, customs duties and currency exchange activities is also permissible even if German law does not impose the same kind of taxes or does not contain the same kind of provisions on taxes, duties, customs duties and currency exchange activities as the law of the requesting Member State.

(2) Authorisation of requests referred to in subsection (1) is not permissible if

1. a ban on confiscation pursuant to section 77 (1) in conjunction with section 97 of the Code of Criminal Procedure has been imposed or

2. final judgment has already been passed upon the person pursued in a Member State other than the requesting Member State for the same offence which gave rise to the request, provided that, in the case of conviction, the sanction has already been enforced, is currently being enforced or can no longer be enforced under the law of the sentencing state.

This does not apply if the request serves the purpose of preparing an order for confiscation and such a measure could be independently ordered under section 76a of the Criminal Code.

(3) Authorisation of requests for measures as set out in section 58 (3) and section 67 may be deferred as long as

1. they might compromise ongoing criminal investigations and

2. the property to which the request refers has been confiscated or frozen for other criminal proceedings.