Seizure and Confiscation (Beschlagnahme) – May the Police Do That?

Seizure and Confiscation (Beschlagnahme und Sicherstellung) – May the Police Do That?

During criminal investigations in Germany, the police frequently seize items such as mobile phones, computers, documents, cash, or even vehicles. For those affected – particularly expats and foreign nationals who may be unfamiliar with the German legal system – this raises immediate questions: Is this lawful? When must items be returned? And what legal remedies are available? This article provides an overview of the legal framework governing seizure and confiscation under German law.

Distinction: Sicherstellung vs. Beschlagnahme

German law distinguishes between two forms of taking items into official custody:

• Sicherstellung (securing/confiscation): An item is taken into custody with the consent of the person concerned, or to avert an immediate danger. No judicial order is required in this case.
• Beschlagnahme (seizure): An item is taken against the will of the person concerned. This constitutes a more intrusive measure and generally requires a judicial order (§ 98(1) StPO).

In practice, the distinction matters because seizure (Beschlagnahme) is subject to stricter procedural requirements and offers more avenues for legal challenge.

Legal Requirements for Seizure

The legal basis for the seizure of evidence is found in §§ 94–98 StPO. The following requirements must be met:

1. Evidentiary Significance

Items may only be seized if they are of potential significance as evidence in criminal proceedings (§ 94(1) StPO). This includes documents, data carriers, clothing, financial records, and any object that may serve to prove or disprove a criminal offence.

2. Judicial Order

A seizure generally requires a judicial order (§ 98(1) StPO). Only in cases of imminent danger (Gefahr im Verzug) may the public prosecutor or police order a seizure without prior judicial authorisation. In such cases, the seized person may demand a subsequent judicial review (§ 98(2) StPO).

3. Proportionality

The seizure must be proportionate. This means that the significance of the evidence must be weighed against the impact on the affected person. Seizing a business’s entire server, for example, may be disproportionate if copying specific files would suffice.

Special Cases

Seizure of Electronic Devices

Mobile phones, laptops, and tablets are among the most frequently seized items in modern criminal investigations. Authorities may extract and analyse stored data, including messages, photographs, location data, and browser history. For expats, this may include communications in foreign languages, which may be translated by sworn interpreters for use in the proceedings.

Seizure of Cash and Financial Assets

Cash and bank accounts may be seized both as evidence and for the purpose of asset recovery (Vermögensabschöpfung, §§ 73 ff. StGB). In cases involving suspected money laundering or drug trafficking, large sums of money may be frozen even before a conviction. In such cases, rapid legal action is essential to protect your assets.

Privileged Items

Certain items are exempt from seizure. Most importantly, correspondence and documents between the accused and their defense lawyer may not be seized (§ 97 StPO). This privilege is fundamental to the right to a fair defense and is strictly protected.

Legal Remedies Against Seizure

If items have been seized, the affected person has several options:

• Application for judicial review (§ 98(2) StPO): If the seizure was ordered by the prosecutor or police (without a judge), you may request that a judge review the measure. The court must then confirm or lift the seizure.
• Complaint (Beschwerde, § 304 StPO): A complaint against the judicial confirmation of the seizure may be filed with the higher court.
• Request for return: You may apply for the return of seized items if they are no longer needed for the proceedings or if the seizure was unlawful.

How We Can Help

The seizure of personal belongings, financial assets, or electronic devices can have serious consequences – both for the criminal case and for your daily life. At BAFTEH Criminal Defense, we review every seizure for lawfulness, challenge disproportionate measures, and work to secure the prompt return of your property. Attorney Bafteh will examine your case and take immediate action to protect your rights. Contact us at any time – we are available around the clock.

Written by attorney Philip Bafteh, criminal defense attorney in Bonn. Philip Bafteh publishes regularly on criminal and commercial law and defends accused persons in investigative and trial proceedings.

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Last updated: June 2026