Sicherstellung und Beschlagnahme

During a search or in the course of an investigation, items are often taken away: mobile phones, laptops, documents, data carriers or cash. In legal terms, a distinction is drawn between provisional securing (Sicherstellung) and formal seizure (Beschlagnahme). Here you will learn which provisions apply, which remedies are available to you and what applies when items are secured from third parties.

Securing or seizure – what is the difference?

Both are governed by section 94 of the Code of Criminal Procedure (StPO). Securing occurs where an item is handed over voluntarily or taken into official custody informally. Where custody is established against the will of the person concerned, this is a seizure (section 94(2) StPO). Items may be seized if they may be of significance as evidence for the investigation.

Which provisions apply?

A seizure generally requires a court order (section 98(1) StPO). In cases of urgency, the public prosecutor and its investigators may order the seizure as well. If the person concerned or an adult relative was not present or expressly objected, judicial confirmation must be obtained within three days (section 98(2) StPO). The securing of assets for later confiscation is additionally governed by sections 111b et seq. StPO.

Which remedies are available – and what are the requirements?

A seizure carried out without a court order can be challenged at any time by applying for a judicial decision (section 98(2) sentence 2 StPO). A judicial seizure order can be challenged by way of complaint (section 304 StPO). The court then examines whether there were grounds for an initial suspicion, whether the item can serve as evidence at all and whether the measure was proportionate. Common points of attack for the defence are a missing or overly broad order, the lack of evidential relevance of the item, or disproportionality – for example where all data carriers are taken indiscriminately.

Seizure prohibitions

Not everything may be seized. Section 97 StPO protects in particular the communication between the accused and defence counsel as well as documents of other professionals entitled to refuse testimony, such as doctors or members of the clergy. Such items are subject to a seizure prohibition and must be returned.

Securing items from third parties

Items are not only secured from the accused. Items may also be seized from uninvolved third parties – such as family members, employers or business partners – if they may serve as evidence. A search of persons other than the accused is, however, subject to stricter requirements (section 103 StPO). Third parties are also entitled to seek remedies: they may apply for a judicial decision or lodge a complaint and demand the return of their property once it is no longer needed as evidence. Especially for non-accused third parties, legal assistance is worthwhile in order to obtain a swift return.

What you should do now

Object expressly to the removal if you do not wish to hand items over voluntarily – this preserves your rights and triggers judicial review. Ask for an inventory of the secured items. Do not make any statement on the matter and contact a defence lawyer at an early stage. We review the lawfulness of the measure and enforce the return of your items wherever possible.

Have items been secured or seized from you? Get in touch – we will examine the available remedies in your case.

This article provides general information and does not replace advice in an individual case.

Seizure & confiscation: your rights

Legal bases (§§ 94 ff. StPO)

Objects that may be relevant as evidence may be secured. If their surrender is not accepted voluntarily, the confiscation generally requires a judicial order (§ 98 StPO).

Return and legal protection

You can request a judicial decision on the confiscation and demand the return of objects that are not, or no longer, needed. We enforce the return for you.

Data and mobile phones

For the seizure of data carriers and mobile phones, the review (§ 110 StPO) and its proportionality are of particular importance – often the points where the defence can intervene.

Note: This information is general and does not replace advice in an individual case.

This information does not replace a review of the individual case. In criminal proceedings, the defence strategy depends substantially on the case file, the specific allegation and the evidence.