(1) If an intentional crime has been committed, then objects which were generated thereby or used or intended for use in its commission or preparation may be confiscated. (2) Confiscation shall only be permissible if:
1. the perpetrator or inciter or accessory owns or has a claim to the objects at the time of the decision; or
2. the objects, due to their nature and the circumstances, endanger the general public or there exists a danger that they will be used for the commission of unlawful acts.
(3) Under the provisions of subsection (2), no. 2, confiscation of objects shall also be permissible if the perpetrator acted without guilt.
(4) If confiscation is prescribed or permitted by a special provision over and above subsection (1), then subsections (2) and (3) shall apply accordingly.
Section 74a Extended Prerequisites for Confiscation
If the law refers to this provision, then objects may also be confiscated, as an exception to Section 74 subsection (2), no. 1, if at the time of the decision the person who owns or has a claim to them:
1. has at least recklessly contributed to the fact that the property or the right thereto has been the object or instrumentality of the act or its preparation; or
2. has acquired the objects in a reprehensible manner with knowledge of the circumstances which would have permitted their confiscation.
Section 74b Principle of Proportionality
(1) If confiscation is not prescribed, then it may not be ordered in cases under Sections 74 subsection (2), no. 1 and 74a when it is disproportionate to the significance of the act committed or the reproach attaching to the perpetrator or inciter or accessory or the third party in cases of Section 74a affected by the confiscation.
(2) In cases under Sections 74 and 74a the court shall order that the confiscation be reserved and shall impose a less incisive measure if the objective of the confiscation can also be thereby attained. Particular consideration shall be given to instructions:
1. to render the objects unusable;
2. to remove particular fittings or distinguishing marks or otherwise modify the objects; or
3. to deal with the objects in a specified manner. If the instructions are followed, the reservation on confiscation shall be lifted; otherwise the court shall subsequently order the confiscation.
(3) If the confiscation is not prescribed, then it may be limited to a part of the objects. Section 74c Confiscation of Replacement Value
(1) If the perpetrator or inciter or accessory has used, particularly through alienation or consumption, the object which he owned or had a claim to at the time of the act and which could have been subject to confiscation, or if he has otherwise obstructed the confiscation of the object, then the court may order the confiscation from the perpetrator or inciter or accessory of a sum of money no greater than an amount equivalent to the value of the object.
(2) The court may also make such an order collateral to the confiscation of an object or in place thereof, if the perpetrator or inciter or accessory has, prior to the decision on
confiscation, encumbered it with the right of a third party, the extinguishment of which cannot be ordered without compensation or could not be ordered in the case of
confiscation (Sections 74e subsection (2), and 74f); if the court makes the order collateral to the confiscation, then the amount of the replacement value shall be measured
according to the value of the encumbrance on the object.
(3) The value of the object and the encumbrance may be estimated. (4) In approving facilitation of payment Section 42 shall apply. Section 74d Confiscation of Writings and Rendering Unusable
(1) Writings (Section 11 subsection (3)), which have a content such that every intentional dissemination with knowledge of their content would satisfy the elements of a penal norm, shall be confiscated if at least one copy was disseminated by means of an unlawful act or was intended for such dissemination. It shall simultaneously be ordered that the equipment used or intended for the production of the writings, such as plates, frames, type, blocks, negatives or stencils, be rendered unusable.
(2) The confiscation shall extend only to copies which are in the possession of the persons involved in their dissemination or preparation or which have been publicly displayed or, having been forwarded for dissemination, have not yet been distributed to the recipient.
(3) Subsection (1) shall correspondingly apply to writings (Section 11 subsection (3)) which have a content such that intentional dissemination with knowledge of their content would satisfy the elements of a penal norm only when additional attendant circumstances of the act are present. Confiscation and rendering unusable shall, however, only be ordered to the extent that:
1. the copies and the objects indicated in subsection (1), sentence 2 are in the possession of the perpetrator, inciter or accessory or another on whose behalf the perpetrator or inciter or accessory acted, or are intended by these people for dissemination; and 2. the measures are required to prevent unlawful dissemination by these persons.
(4) It shall be deemed equivalent to dissemination within the meaning of subsections (1) to (3), if a writing (Section 11 subsection (3)) or at least one copy of the writing has been made accessible to the public by display, posting, presentation or other means.
(5) Section 74b subsections (2) and (3), shall apply accordingly. Section 74e Effect of Confiscation
(1) If an object is confiscated, then ownership of the property or the right confiscated shall pass to the state when the decision becomes final.
(2) The rights of third parties in the object shall remain intact. However, the court shall order the extinguishment of these rights if it bases confiscation on the fact that the
conditions of Section 74 subsection (2), no. 2, exist. It may also order the extinguishment of the rights of a third party if he may not be granted compensation pursuant to Section 74f subsection (2), nos. 1 or 2.
(3) Section 73e subsection (2), shall apply accordingly for the order of confiscation and the order reserving confiscation, even when it has not yet become final.
Section 74f Compensation
(1) If a third party had a claim of ownership in the property or the confiscated right at the time the decision on confiscation or rendering unusable became final or if the object was encumbered by a right of a third party which was extinguished or interfered with by the decision, then the third party shall be appropriately compensated in money from the public treasury taking into consideration the fair market value.
1. the third party has at least recklessly contributed to the fact that the property or the right thereto has been the object or instrumentality of the act or its preparation; 2. the third party has acquired the object or the right in the object in a reprehensible manner with knowledge of the circumstances which permit its confiscation or rendering unusable; or
3. it would be permissible, under the circumstances which justify the confiscation or rendering unusable, to confiscate the object from the third party permanently and without compensation on the basis of legal provisions outside of the criminal law.
(3) In cases under subsection (2) compensation may be granted to the extent it would constitute an undue hardship to refuse it.
Section 75 Special Provision for Entities and Representatives