3. Former legal situation: expiry and seizures
According to the old legal situation, a distinction was made between “expiry” and “seizures”.
The expiry in the old version of the law referred – put simply – to what “had been achieved through the deed”. This should not remain with the perpetrator, but be transferred to the state. The forfeiture did not constitute an additional penalty, but a measure to skim off the assets acquired illegally, which could also be imposed independently of the culpability of the perpetrator. However, since decay – at least according to the wording of the law (“something achieved”) – followed the so-called gross principle, i.e. did not focus on profit, but on what was achieved, it actually had the effect of an evil with a sanctioning effect that went beyond mere skimming back.
The condition for forfeiture was the existence of an unlawful act. A large number of assets, including movable property, land, rights in rem, consolidated peculiarities, tax advantages, etc., were classified as “acquired assets”. These values had to come directly “from the deed”, i.e. they had to flow to the perpetrator from the realization of the offence. Not included were profits “for the crime”, e.g. rewards for the participation in the crime. As a result of the so-called “extended expiry” (§ 73d StGB old version), assets were also recorded under the old legal situation which originated in connection offences, i.e. which did not represent “something achieved” under § 73 StGB old version, but had otherwise illegally come into the possession of the offender as a result of a previous act.
In cases where the concrete object obtained could no longer be skimmed off, the offender was obliged to pay compensation for the monetary value (§ 73a StGB). If the exact values for the levy according to §§ 73 and 73a StGB old could not be determined, they could be estimated (§ 73b StGB old).
Exceptionally, the offender escaped the levy on property if he was thereby exposed to “undue hardship” (§ 73c StGB old version). Pursuant to § 73 (1) sentence 2 StGB (old version), the forfeiture was not ordered for the protection of the injured party “insofar as the injured party has accrued a claim from the offence, the fulfilment of which would deprive the offender or participant of the value of what was obtained from the offence”. As a result, a form of civil law recovery aid was installed in criminal law.
The legal consequence of the expiry was the transfer of ownership of the expired goods to the state (§ 73e StGB old version).
The seizure which had to to be separated from expiry (§§ 74 to 75 StGB a.F.) after former law did not refer to what was obtained by the act but to the securing of what was “produced by the act” (so-called producta sceleris, e.g. counterfeit money, false documents, etc.) or the “used for the act” (so-called instrumenta sceleris, e.g. the used murder weapon, the transport container used for the narcotics, etc.). Ownership of the confiscated property was also transferred to the state (§ 74e StGB old version).