Non-Conviction-Based Confiscation (NCBC) – A Reform Option for German Asset Recovery Law

Cross-border, asset-related crime exploits a persistent enforcement gap in Germany’s confiscation regime. Existing tools — conviction-based forfeiture under §§ 73 ff. German Criminal Code (StGB) and the narrowly framed conviction-independent procedure of § 76a StGB — fail whenever offenders abscond, die, or hide behind complex offshore structures. This article addresses two research questions: (1) Can a non-conviction-based confiscation (NCBC) mechanism close this gap effectively? (2) Is such a mechanism compatible with the property guarantee of Art. 14 Basic Law and the fair-trial safeguards of Art. 6 European Convention on Human Rights? Building on Directive (EU) 2024/1260 on asset recovery; comparative practice in Switzerland (SRVG 2015), Italy (confisca di prevenzione), and the United Kingdom (Proceeds of Crime Act 2002); and German constitutional jurisprudence, the author proposes a Vermögenseinziehungsgesetz (VEG, Asset Confiscation Act). The VEG is conceived as an in rem civil procedure before specialised chambers: the public prosecutor must demonstrate the “overwhelming probability” of illicit origin (i.e., an evidentiary standard lying between reasonable suspicion and proof beyond reasonable doubt, roughly 75% likelihood); only then does the owner assume a secondary burden to substantiate lawful provenance. Annual judicial review, hardship compensation, and a federal Asset Recovery Office would help safeguard due process. The proposal also recommends that data processing follow the principles of the General Data Protection Regulation, while cross-border enforcement interfaces with Regulation (EU) 2018/1805. The analysis demonstrates that the VEG model would satisfy Union minimum standards and the proportionality test of the German Federal Constitutional Court, thereby transforming the maxim “crime must not pay” into a legally and practically attainable objective.