Section 437
Special provisions governing independent confiscation proceedings
When giving its decision on independent confiscation pursuant to section 76a (4) of
the Criminal Code, the court may, in particular, base its conviction as to whether the
object was derived from an unlawful act on the gross imbalance between the value
of the object and the legitimate income of the person concerned. It may also take
the following into account when reaching its decision:
1.
the outcome of the investigations into the offence giving rise to the
proceedings,
2.
the circumstances under which the object was found and secured, and
3.
the person concerned’s other personal and economic circumstances.
Section 438
Accessory parties in criminal proceedings
(1) If a decision is to be given concerning the confiscation of an object, the court
shall order that a person who is neither the indicted accused nor a person who might
be considered as a party to confiscation proceedings shall become a party to the
confiscation aspect of the proceedings as an accessory party (
Nebenbetroffener
) if it
appears credible that
1.
this person owns or is entitled to the object or
2.
this person has another right in the object and the lapse of that right could be
ordered pursuant to section 75 (2) sentences 2 and 3 of the Criminal Code in
the event of confiscation.
Section 424 (2) to (5) and section 425 shall apply accordingly to the order for
participation in the proceedings.
(2) The court may order that participation in the proceedings shall not cover the
question of the indicted accused’s guilt
1.
if, in the case under subsection (1) no. 1, confiscation can only be
considered if the object belongs to the person from whom it is to be
confiscated or that person is entitled to it or
2.
if the object could also be permanently confiscated under those conditions
which can establish confiscation, including on the ground of legal provisions
outside the scope of criminal law.
Section 424 (4) sentence 2 shall apply accordingly.
(3) In all other respects, sections 426 to 434 shall apply accordingly
,
with the proviso
that, in the cases under section 432 (2) and section 433, the court shall not re-
examine the conviction if, based on the conditions which established the
confiscation, an order pursuant to subsection (2) would be admissible.
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