Legal protection in the event of cash seizure

Suspicion of money laundering after seizure and clearing procedure pursuant to Section 12a (7) ZollVG

Travelers carrying EUR 10,000 or more in cash are obliged to declare this electronically (or in exceptional cases in writing) to customs. To prove the origin, the beneficial owner and the intended use of the cash or comparable means of payment, the persons concerned or beneficial owners must submit suitable receipts, certificates or other documents at the request of the customs officials in the clearing procedure, in accordance with Section 12a (5) sentence 1 ZollVG. An objection can be lodged against the seizure and, if the objection is not upheld, an action for annulment can be brought.

If it is suspected that the conditions for the confiscation or rendering unusable of an item - in this case cash - are met, it can be seized in order to secure further enforcement after the seizure and any unsuccessful clearing proceedings (Section 12a (7) ZollVG), in accordance with Section 111b (1) StPO. The accusation of money laundering is often made based on an allegedly unclear origin.

The prerequisite for this is an initial suspicion under criminal law in accordance with Section 152 (2) StPO. This provision requires sufficient factual indications of a criminal offense. An initial suspicion must be based on concrete facts; vague indications and mere suspicions are not sufficient. An initial suspicion that triggers the obligation to prosecute exists if, according to forensic experience, there is a possibility that a criminal offense has been committed and thus a subsequent conviction appears possible. In the case of allegations of money laundering, a double initial suspicion is even required, i.e. both for the predicate offense and for the money laundering itself.

Decisions by investigating judges sometimes equate the amount of cash and/or the circumstances justifying its seizure alone with the existence of an initial suspicion. This is inadmissible. Only a specific predicate offense gives the money or the object with which the perpetrator handles the stigma that assigns a neutral, socially typical act such as a cash payment the inferiority of criminal liability. This is a question of fact.

Proof of the illegal origin of the money is often not provided or not provided sufficiently in the course of the investigation. Cash remains confiscated for a disproportionately long time. In most cases, there is an increasing lack of initial suspicion in the further course of the investigation, i.e. concrete evidence that the cash originates from illegal criminal acts. Even if the prosecuting authorities are granted a margin of discretion regarding the predicate offense at the beginning of the investigation, this must become sufficiently concrete in the further course of the investigation in order to be able to maintain the measures incriminating the third party.

Like any coercive measure in criminal proceedings within the framework of the investigation, the ordering and maintenance of seizure for the purpose of subsequent confiscation is also subject to the proviso of proportionality. The Federal Constitutional Court has repeatedly emphasized the importance of this characteristic.

As the interference with property takes place on the basis of a mere suspicion of a crime and there is no decision on criminal liability, the need for seizure must be weighed against the owner's position. The need to freeze property must not automatically be given priority. The reasons for the investigating judge's decision must also support the assumption that the need for freezing outweighs the property rights of the person affected by the arrest or seizure. Each individual case must be examined and explained in detail.

Under the old legal situation (Section 111 (3) StPO old version), the need for legal protection ceased to apply after six months. However, the prohibition of excesses also applies after the reform of asset recovery.

The law expressly distinguishes between simple and urgent suspicion. The general view is that a proportionality test must be carried out, in which the need to protect the general public must be weighed against the fundamental right of the person concerned under Article 14 (1) of the Basic Law.

The requirements for justifying the safeguarding of the claim increase with the ongoing measure of property encroachment.

According to the view expressed in the literature, the need for security expires after nine months at the latest, and possibly even earlier if no concrete investigative efforts into the background of the seized funds are discernible, particularly with regard to the predicate offense. In addition, the proportionality test must take into account whether the personal and financial circumstances contradict the assumption of legal origin, i.e. whether there is a disproportion between the legal income and the seized cash.

Investigating magistrates' orders to seize cash must be examined critically on a regular basis and, if necessary, challenged by means of an appeal in accordance with Section 304 of the Code of Criminal Procedure, particularly with regard to the interim proof of the linking offense. Unlike in clearing proceedings, this evidence must be provided by the prosecution authorities.

Anyone whose rights are violated by the measure, i.e. whose freedom, property or other rights are impaired in a substantive or procedural manner, is entitled to appeal.

The conflict between the duty to cooperate pursuant to Section 12a (5) ZollVG (“must ... produce”) and the prohibition of criminal proceedings in the event of a breach of the nemo-tenetur principle must also be taken into account if customs demand information on the origin of the cash even though there was already a (double) initial suspicion under criminal law of money laundering and a predicate offense.