Regularly the core of each economic criminal prosecution is the accusation of the defendant to procuring illegal pecuniary advantages. In case of a conviction this shall not, according to the volition of the legislator, remain with the defendant. The gains made from the act shall either be returned to the victim of the criminal offence or be retracted in favour of the treasury. This underlies the thought that “a criminal offence should not be worth the efforts”.
A criminal prosecution – especially in the area of economic criminal law with often highly complex facts and legal issues – can extend for an eon. The legislator apprehends that the defendant may secrete his assets away in order to, in case of a conviction, avoid negative financial outcomes for regulatory measures of the deprivation of material gains to run into nothing. The law therefore sees the opportunity to preliminary freeze the defendant’s assets, already at the beginning of a trial, in order to guarantee the governmental access through potentially damaged and the governmental authorities. This proceeding option is termed as „detention in rem“.
Confiscation of assets
The tools for “detention in rem” are multifaceted and essentially correspond with the enforcement possibilities of civil procedures. Especially movable things and claims – such as cash at banks – can be impounded as well as properties and real estate rights strained with equitable mortgage. This order for detention in rem can quickly become a matter of economic survival for the person concerned, since there is a substantial risk that formally only preliminary measures – such as the temporary blocking of the bank accounts – lead to irreparable economic damages because e.g. payables on deliveries cannot be paid for. In extreme cases such developments lead to insolvency.
For the defence it is imperative to recognize the risk of imprisonment precociously and to avert corresponding orders with suitable measures. In case such measures are already executed, the defence has to work towards its omission and if necessary file appropriate remedies. In suitable cases pragmatic solutions are developed through hearings with the prosecution authority which can, with regard of the regulatory interest of security, take into account the interests and constraints of the concerned person. For this, the practical experience of ECKSTEIN & KOLLEGEN lawyers is vital.