A reversal of the burden of proof (Beweislastumkehr) for assets of unclear origin does not currently apply in Germany. So far it exists only in a bill of the Federal Council (Bundesrat) (Bundestag printed paper, BT-Drs. 21/5777). Under current law, the court must be convinced that an object derives from an unlawful act, both in extended confiscation (erweiterte Einziehung, § 73a Criminal Code (Strafgesetzbuch, StGB)) and in the independent confiscation (selbständige Einziehung) of secured objects (sichergestellte Gegenstände) (§ 76a (4) StGB, § 437 Code of Criminal Procedure (Strafprozessordnung, StPO)). The Act implementing EU Directive 2024/1260 was promulgated on 27 October 2026 and contains no such rule.
Anyone who holds cash, gold or crypto assets and cannot document their origin without gaps currently often reads the opposite. The transposition deadline of the Directive ends on 23 November 2026. On asset protection in general, see the emergency plan for asset protection abroad. This article separates what has applied since 28 October 2026, what has already applied since 2017 and what is only being discussed.
New since 28 October 2026: Implementing Act without a Reversal of the Burden of Proof
The German legislature transposed EU Directive 2024/1260 before the deadline expired, and did so without a reversal of the burden of proof. The stages:
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| Date | Step | Reference |
|---|---|---|
| 11 May 2026 | Government bill | BT-Drs. 21/5869 |
| 24 September 2026 | Adoption by the Bundestag in the committee version | BT-Drs. 21/8159 |
| 16 October 2026 | Consent of the Bundesrat | BR-Drs. 561/26 (B) |
| 22 October 2026 | Act signed | BGBl. 2026 I No. 320 |
| 27 October 2026 | Promulgation; entry into force on the day after promulgation | Art. 11 of the Act |
| 20 November 2026 | Entry into force of Art. 9 (amendment of the Financial Services Supervision Act, FinDAG) | Art. 11 of the Act |
| 23 November 2026 | End of the transposition deadline | Art. 33 (1) of the Directive |
The Act does not amend the Criminal Code. In the Code of Criminal Procedure it concerns only § 111p StPO, that is, the emergency sale (Notveräußerung) of secured objects. Its focus is on responsibilities and cross-border cooperation, for example the temporary securing of assets at the request of other EU states (§ 91r Act on International Mutual Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen, IRG)).
In Art. 16, the Directive provides for the confiscation of assets of unclear origin. The government bill regarded this requirement as already transposed by § 76a StGB in conjunction with § 437 StPO (BT-Drs. 21/5869). The Bundesrat relies on the fact that Art. 16 (2) letter a of the Directive names a substantial disproportion between value and lawful income as a criterion. A criterion, however, is not yet a statutory presumption. Anyone who reads that the deadline of 23 November 2026 brings a reversal of the burden of proof is therefore mistaken.
Already since 2017: Confiscation without Conviction under § 76a (4) StGB
Independent extended confiscation under § 76a (4) StGB has applied since 1 July 2017 (BGBl. 2017 I p. 872). It is not a statutory reversal of the burden of proof, but it makes access easier: a conviction is not required, whereas the court’s conviction that the object is of criminal origin is. The most important forms differ as follows:
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| Form | Provision | Requirement |
|---|---|---|
| Confiscation of proceeds of crime (Einziehung von Taterträgen) | § 73 StGB | The perpetrator or participant has obtained something through or for an unlawful act |
| Extended confiscation | § 73a StGB | An unlawful act has been committed; objects of the perpetrator or participant were obtained through or for other unlawful acts |
| Independent confiscation | § 76a (1) to (3) StGB | Confiscation without the conviction of a particular person |
| Independent extended confiscation | § 76a (4) StGB | The object was secured on suspicion of a catalogue offence (Katalogtat) and derives from an unlawful act |
For the subject of assets of unclear origin, two provisions matter. Extended confiscation under § 73a StGB applies in criminal proceedings: if an unlawful act has been committed, the court orders the confiscation of objects of the perpetrator or participant even if they were obtained through or for other unlawful acts. § 76a (4) StGB goes further, because it does not require a conviction. It does, however, require that the object was secured on suspicion of a catalogue offence. The catalogue includes, among others, money laundering (§ 261 (1) and (2) StGB), terrorist financing, tax evasion under the conditions of § 370 (3) no. 5 Fiscal Code (Abgabenordnung, AO), certain narcotics offences and intentional offences under §§ 17 and 18 Foreign Trade and Payments Act (Außenwirtschaftsgesetz, AWG). The object is then to be confiscated even if the person concerned cannot be prosecuted or convicted for the underlying act. Once the decision becomes final, ownership passes to the state.
§ 437 StPO names the circumstances on which the court can base its conviction: above all a gross disproportion between value and lawful income, and in addition the result of the investigations, the circumstances in which the object was found and the personal and economic circumstances. The Bundesrat itself describes the legal position as follows: the provision only gives guidelines, remaining doubts operate in favour of the person concerned, and confiscation fails if doubts cannot be dispelled (BT-Drs. 21/5777, p. 9 f., with reference to Federal Court of Justice (Bundesgerichtshof, BGH), judgment of 18 September 2019, 1 StR 320/18, and judgment of 17 July 2025, 5 StR 465/24).
Why Practice Nevertheless Appears Strict
Formally the state bears the burden, but in the assessment of the German Federal Bar (Bundesrechtsanwaltskammer, BRAK) case law has already made application easier (BGH, 5 StR 622/24 and 5 StR 465/24). In addition, the Federal Court of Justice decided on 3 December 2025 (5 StR 702/24) that the matter can concern any unlawful act that cannot be specified in more detail. It interprets the element of deriving from (Herrühren) broadly and includes chains of conversions. In the case of mixed funds, according to the order, it suffices that the illegal portion is not entirely insignificant from an economic point of view. Disproportionate results are to be prevented by the design as a “should” provision (Soll-Vorschrift).
In the case decided, the public prosecutor’s office had discontinued the investigation because specific predicate offences could not be proven. The Regional Court (Landgericht) could not rule out that up to 130,000 euros of the purchase price of an apartment building came from legal funds. The confiscation of the building nevertheless stood. The facts were, however, special: the Regional Court found an acquisition through a straw man and a loan agreement concluded only as a sham.
Under § 76b (1) StGB, extended and independent confiscation become time-barred only 30 years after the act was completed. Acquisitions that lie far in the past can therefore still become the subject of proceedings.
Only Discussed: Reversal of the Burden of Proof, Customs Procedure and Criticism
Everything that follows has not been adopted.
The Bundesrat Bill: A Statutory Presumption in § 437 StPO
The Bundesrat wants derivation from an unlawful act to be presumed by law if the value of an object is grossly disproportionate to the lawful income of the person concerned. It adopted the bill on 27 March 2026 (BR-Drs. 131/26 (B)), and it was forwarded to the Bundestag dated 6 May 2026. What is to be amended is not § 76a StGB but the procedural provision § 437 StPO. It is to receive a new paragraph 2.
According to the explanatory memorandum, this would have the following effect:
- Doubts operate against the person concerned. If, after taking evidence, the court cannot be fully convinced of a legal source, it must assume a non-legal origin. There is no discretion in this respect.
- The presumption is rebuttable. Despite a gross disproportion, the court may find a legal origin if it is convinced of it.
- The court continues to investigate of its own motion. § 244 (2) StPO remains applicable, even if the person concerned remains silent.
- The gross disproportion must be established. The term is deliberately not defined.
- There is no value threshold. The bill names no minimum amount.
- Pending proceedings would be covered. The new law is not to apply only where the court has already decided to open the proceedings when it enters into force (§ 14 (2) Introductory Act to the Code of Criminal Procedure (EGStPO) in the draft version).
In its statement, the Federal Government supports the concern but refers to constitutional requirements and the basic principles of criminal procedure. It wants to take up the subject in a separate project to reform asset recovery (Vermögensabschöpfung) and to present a bill before the end of 2026. No such bill can be found in publicly accessible sources so far. A legislative decision (Gesetzesbeschluss) of the Bundestag on BT-Drs. 21/5777 is not apparent either. The coalition agreement for the 21st legislative period provides for a complete reversal of the burden of proof in the confiscation of assets of unclear origin.
Confiscation by Customs outside Criminal Proceedings
In parallel with the Bundesrat bill, the Federal Government is planning a separate administrative procedure for suspicious assets. The bill for an Act for more justice by strengthening the customs administration and combating financial crime (BT-Drs. 21/8282 of 30 September 2026) had its first reading on 9 October 2026. The public hearing in the Finance Committee took place on 2 November 2026. The Act is essentially to enter into force on 1 January 2027. It has not been adopted.
Among other things, the bill provides (§§ 53 et seq. Customs Criminal Investigation Office Act (ZollKrimBG) in the draft version, previously the Customs Investigation Service Act (Zollfahndungsdienstgesetz)):
- Significant assets are covered. This applies in particular from a value above 100,000 euros, and for objects subject to registration such as real property or vehicles above 50,000 euros (§ 54 (2)).
- Customs can secure for up to 30 days. The Finance Court (Finanzgericht) can extend the period once by 150 days, by an unappealable order (§ 56).
- Justified doubts: They exist in particular if lawful acquisition does not appear plausible on an overall assessment (§ 54 (3)).
- Confiscation by judgment: The Finance Court orders confiscation by judgment if it is convinced of the unlawful origin. It can refrain from doing so in cases of undue hardship (§ 62).
Formally, then, the court’s conviction remains decisive here too. In terms of evidence, however, according to the explanatory memorandum the procedure is to follow civil law rules on the burden of presentation and proof; by mere silence the person concerned will as a rule not be able to avert confiscation (BT-Drs. 21/8282, p. 231). The Bundesrat calls for a statutory presumption here as well, while the Federal Government rejects any further shift of the burden of proof (ibid., pp. 350 et seq., 375).
Criticism: Presumption of Innocence, Right to Silence and Property
The German Federal Bar rejects the reversal of the burden of proof; the Bundesrat considers it constitutional. According to the explanatory memorandum of the bill, the Federal Constitutional Court (Bundesverfassungsgericht) has not yet decided on the scope of statutory presumptions in independent confiscation proceedings.
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| Point | German Federal Bar (Statement No. 37, June 2026) | Explanatory memorandum of the Bundesrat (BT-Drs. 21/5777) |
|---|---|---|
| Presumption of innocence | Concerns under constitutional, European and Convention law even if confiscation is denied the character of a penalty; already earlier objection under Art. 6 (2) ECHR | Confiscation is not a penalty but a measure of its own kind; the presumption of innocence does not apply |
| In dubio pro reo (Zweifelssatz) | It is switched off with regard to legal origin | Because of the state’s “structural evidentiary hardship” (strukturelle Beweisnot), doubts may operate against the person concerned |
| Right to silence | Persons concerned come under de facto pressure to make a statement | No obligation to make a statement; silence can have adverse effects, and the right to silence must give way to that extent |
| Property (Art. 14 Basic Law (Grundgesetz, GG)) | Concerns about pure confiscation on suspicion | Appropriate balance through the triggering proceedings, investigation of the court’s own motion and proportionality review |
| Scope | No minimum threshold, no restriction to organised crime, sole reliance on the disproportion | Limitation through securing on suspicion of a catalogue offence |
| Need | No documented gap; the Federal Court of Justice has already made application easier | In practice, confiscation often fails because of residual doubts |
The Bundesrat also relies on the European Court of Human Rights. The Federal Bar considers its decisions not transferable, because they concerned confiscations to prevent organised crime.
Who Could Be Affected: Cash, Gold and Crypto Assets without Records
Law-abiding persons can also be affected if their assets are secured and they cannot document the origin. Under § 76a (4) StGB and the Bundesrat bill, however, the entry point is always securing on suspicion of a catalogue offence; the planned customs procedure does not require this. A mere holding of assets without such a suspicion is not enough for § 76a (4) StGB. Since money laundering is in the catalogue, however, depending on the facts of the case the threshold can be reached faster than laypeople expect.
Cash. When travelling within the EU, cash of 10,000 euros or more must be declared orally when customs asks, and the origin, the beneficial owner and the intended use must be explained. When crossing the EU’s external border, a written declaration is mandatory. On the limits within Germany, see the article on the cash limit in Germany.
Gold, jewellery and crypto assets. The explanatory memorandum of the bill expressly names precious metals, jewellery, watches and cryptocurrencies as typical assets. In over-the-counter transactions (Tafelgeschäfte), records may be missing years later. The legal framework is covered in the article on gold in a crisis. This is not an investment recommendation.
Example: during a check, 80,000 euros in cash belonging to the fictitious Anna are secured on suspicion of money laundering. She states that she saved the money over many years, but she has records for only part of it. The proceedings are later discontinued for lack of proof of an offence. Today the court would have to be convinced of the illegal origin. Under the bill, in the case of a gross disproportion to Anna’s provable income, every remaining doubt could operate against her.
Documenting Origin: The Emergency Folder
An orderly collection of proof of origin makes sense regardless of the outcome of the legislative process. Typical contents are:
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| Means of acquisition | Possible evidence |
|---|---|
| Income and savings | Tax assessments, salary statements, bank statements on larger movements |
| Sale proceeds | Purchase agreement, notarial deed, receipt of payment |
| Cash | Withdrawal receipts, purpose and period of accumulation |
| Gold, jewellery, crypto assets | Purchase receipts, dealer’s invoice, transaction records, valuations |
| Loans | Agreement, traceable payment flow, repayment receipts |
Because confiscation becomes time-barred only after 30 years, customary record-keeping habits are not necessarily sufficient. Agreements drawn up after the fact or concluded only as a sham do not exonerate; in the Federal Court of Justice case of 2025, such a loan agreement was among the concealment acts found by the court.
Where Precaution Ends
Documenting is permitted, concealing is not. Anyone who, when enforcement is imminent, puts assets aside in order to frustrate the satisfaction of the creditor risks criminal liability under § 288 StGB. Transfers can also be challenged under the Avoidance Act (Anfechtungsgesetz, AnfG), depending on the ground, for example within four or ten years (§§ 3, 4 AnfG). Moving illegal funds can be money laundering (§ 261 StGB). The route abroad is not a safe haven either, precisely because the Directive strengthens cooperation between EU states. General arrangements made in good time and openly documented are covered in the article on asset protection.
Distinction from the FIU Freeze and Account Termination
Independent confiscation is not the same as a temporary freeze by the Financial Intelligence Unit (Zentralstelle für Finanztransaktionsuntersuchungen, FIU). Under § 40 (1) Money Laundering Act (Geldwäschegesetz, GwG), the FIU can prohibit transactions and block dispositions over accounts and securities accounts or access to a safe deposit box. These immediate measures end after one month at the latest, and also at the end of the fifth working day after the case is passed to the law enforcement authority or at an earlier time set by the FIU (§ 40 (4) GwG).
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| FIU immediate measure | Independent confiscation | |
|---|---|---|
| Who decides | FIU | Court on application by the public prosecutor’s office |
| Effect | Temporary freeze | Ownership passes to the state |
| Duration | At most one month, shorter after the case is passed to law enforcement | Final once the decision becomes final |
| Legal basis | § 40 GwG | § 76a (4) StGB, §§ 435 to 437 StPO |
After a freeze, the matter can go to the public prosecutor’s office and lead to a securing there. Practical steps in the case of a frozen account are described in the article on account blocking. If the bank then terminates the business relationship, that is a separate question, covered in the article Bank closes account without reason.
Three Mistakes Often Made in This Situation
First: confusing a bill with the law. Some already consider the reversal of the burden of proof to be applicable law and give up too quickly. Others overlook how far § 76a (4) StGB and case law already reach today.
Second: explaining spontaneously, without records and without knowledge of the file. The court does not have to believe statements, and contradictory accounts can count as circumstantial evidence. If something is secured, the basis should be clarified first: is it a seizure as evidence (§§ 94, 98 StPO) or the securing of confiscation (§§ 111b et seq. StPO)? The legal remedy depends on this:
- Order by the public prosecutor’s office: If the public prosecutor’s office or its investigators issued the order in exigent circumstances (Gefahr im Verzug), the person concerned can file an application for a court decision (Antrag auf gerichtliche Entscheidung) (§ 111j (2) sentence 3 StPO).
- Order by the court: Then a complaint (Beschwerde) under § 304 StPO is the route.
- Manner of enforcement: Against the manner of enforcement, for example an account attachment or a land register entry, there is the application under § 111k (3) StPO.
Third: restructuring assets under pressure. Transfers to relatives or abroad after proceedings are under way or foreseeable can reinforce the suspicion and have legal consequences of their own.
Conclusion
The reversal of the burden of proof for assets of unclear origin is a proposal, not applicable law. The Act implementing Directive 2024/1260 does not contain it. The Federal Government has, however, announced a separate reform project, and the planned customs procedure would be a further route to confiscation outside criminal proceedings. Even today, assets can be confiscated without a specific act being proven, provided the court is convinced of the illegal origin. Genuine, orderly documentation of origin therefore makes sense regardless of further developments.
Frequently Asked Questions
Does the reversal of the burden of proof for assets of unclear origin already apply?
No. It exists only in the Bundesrat bill (BT-Drs. 21/5777) and is not in force. Under current law, the court must be convinced of the criminal origin (§ 76a (4) StGB, § 437 StPO). The Act implementing Directive 2024/1260 (BGBl. 2026 I No. 320) changes nothing in this respect.
Does 23 November 2026 bring a change for private individuals?
Not for the burden of proof. 23 November 2026 is the end of the transposition deadline of the Directive, and the German implementing Act has already been promulgated. It mainly governs responsibilities and cross-border cooperation; § 76a StGB and § 437 StPO remain unchanged.
Can the state confiscate assets today without a conviction?
Yes, under the conditions of § 76a StGB. Under § 76a (4) StGB it suffices that the object was secured on suspicion of a catalogue offence and that the court is convinced that it derives from some unlawful act. A specific act does not have to be proven (BGH, order of 3 December 2025, 5 StR 702/24).
How do I defend myself against a securing order?
That depends on the basis. For a seizure as evidence, §§ 94, 98 StPO apply; for securing confiscation, §§ 111b et seq. StPO. If the public prosecutor’s office issued the order in exigent circumstances, the application for a court decision helps (§ 111j (2) sentence 3 StPO); against a court order, the complaint (§ 304 StPO); against the manner of enforcement, the application under § 111k (3) StPO.
Is my own statement on the origin sufficient?
You should not rely on it. The court evaluates statements freely and does not have to follow them. What holds up is above all genuine documents from the time, such as agreements, assessments and payment receipts. Statements in the proceedings should be coordinated with a lawyer beforehand.
As of: 5 November 2026.
Attorney Dr. Johannes Fiala and the law firm, with a focus on international inheritance law, tax law and asset protection in Munich, advise asset holders on questions concerning the origin of assets, from classifying a securing order to documenting the acquisition. Dr. Fiala has published extensively on questions of emigration and asset protection. Contact the firm without obligation to have your individual situation discussed in an initial consultation.
