Investigating authorities in customs criminal proceedings

Investigating authorities in customs criminal proceedings

The customs investigation offices, the main customs offices (if necessary with the involvement of the customs investigation offices) and the customs criminal investigation office are responsible for the investigation and prosecution of customs offenses. The jurisdiction of the individual authorities is not uniformly derived from a single law, but from various regulations (laws and service regulations).

Criminal investigations are conducted by the customs investigation offices and the main customs offices. The main customs offices act as the public prosecutor's office in tax matters (in the case of pure tax offenses according to Section 386 (2) AO), as the investigating authority/financial authority (Section 386 (1) AO) as investigators of the state prosecutor's office (including officers of the GAD, MKG) and specifically also with the audit groups of the Financial Control of Clandestine Employment in the fight against undeclared work and illegal employment. According to the Customs Investigation Service Act (ZfDG), the customs investigation offices are assigned investigative activities. This does not follow directly from the ZfDG, but is assumed there. In addition to the prosecution of criminal offenses, the customs investigation offices also have extensive powers for preparatory crime-fighting, for the self-security of their officers and for the protection of endangered witnesses. Therefore, the customs investigation offices are also the "criminal police of customs". Due to the development of customs and excise crimes into a form of organized crime, the customs investigation offices are required to concentrate their work on significant crimes. In this respect, minor cases are prosecuted by the main customs offices without the involvement of the customs investigation offices. Small cases are e.g. cigarette smuggling up to 20,000 pieces, BtM smuggling up to e.g. 100 grams of hashish and criminal offenses up to a tax loss of 3,000.00 EUR. More detailed information can be found in Annex 11: Kleinfallregelung (KFR) to the Dienstvorschrift für das Straf- und Bußgeldverfahren (StraBuDV). However, in the case of gang or organized activity, weapons and explosives smuggling, AWG and KWKG offenses, and subsidy fraud, the customs investigation offices must continue to be involved.

The tasks of the customs investigation offices are derived from Section 208 of the German Fiscal Code (AO). According to paragraph 1, these are the investigation of tax crimes and tax offences, the determination of the basis of taxation in the cases just mentioned, and the discovery and investigation of unknown tax cases. These tasks essentially correspond to the tasks of the police in general criminal law, Section 163 (1) of the Code of Criminal Procedure. The determination of the bases of taxation according to § 208 para. 1 no. 2 AO is basically carried out by the customs investigation. Important in the area of customs offenses is the task of uncovering and investigating unknown tax cases, especially the preliminary investigation. An important and decisive part of the preliminary investigation is the financial investigation. This involves obtaining and evaluating information, especially from the areas of cross-border trade in goods, services, capital and payments monitored by customs, from which indications of money laundering operations may arise. These investigations are conducted by joint financial investigation teams of customs and police.

If the customs investigation offices take criminal action, their task is limited to clarifying the relevant facts. The customs investigation offices have no authority to make a final decision on the investigation proceedings. Likewise, there is no authority to apply to the court for a search, arrest and the like. The only exception is in case of imminent danger. However, the customs investigation offices do have the authority to initiate criminal proceedings pursuant to Section 397 AO.

The Customs Criminal Investigation Office works closely with the Customs Investigation Offices. The Customs Criminal Investigation Office is the central office for the customs investigation service and for the customs administration's information and intelligence system. The Customs Criminal Investigation Office provides support for the customs investigation offices. According to the will of the legislator, investigations should primarily remain with the local authorities (customs investigation offices and main customs offices). In cases of special importance, the Customs Criminal Investigation Office is authorized to conduct the investigations itself. This results from § 4 ZFdG (Customs Investigation Service Act). According to § 16 ZFdG, the Customs Criminal Investigation Office has the same powers as the Customs Investigation Offices.