Introduction

In the first part of our legal tips on the clearing procedure by § 12a ZollVG, we explained what you should consider when entering, leaving or transiting with cash or equivalent means of payment in the amount of at least EUR 10,000.00 in or out of the Federal Republic of Germany. In the following legal tip, we have explained what to expect in the event of a violation of the Customs Administration Act and what needs to be weighed up in relation to the required information.

Now we want to explain to you what exactly happens when the money is confiscated and how the proceedings can develop.1

My cash has been seized, what happens next?

If customs does not find your information on the origin of the cash or its use credible, or if it assumes that the information is incomplete, it will initially seize the money for 30 days. If there is not enough time to clarify the origin of the money, customs will apply to the competent district court for a judicial order extending the original 30-day period for seizure to 90 days. This extension is one-time and cannot be repeated.

What happens during the period of seizure?

The purpose of securing the money is to find out where the money comes from and how it is likely to be used. Customs will therefore ask you to provide documents that provide answers to these questions. We have explained in detail how you should deal with this request in  the first part of this legal tip.

Whether and if so, which documents you should submit cannot be answered without knowledge of the specific facts. In general, however, it can be said that customs will not rely on you to provide information on the origin of the cash, but will also carry out investigations independently. In this case, the collection of register extracts can be considered as well as general police queries. It is also conceivable to obtain BaFin information and it is not uncommon for a simple Internet search to be carried out on the person concerned. In quite a few criminal proceedings, publicly accessible social media profiles lead to further investigative approaches.

Do I have to prove that the money was obtained legally?

No, you don't have to. In general, one must distinguish:

Clearing procedure

The purpose of the clearing procedure is (only) to clarify where the money comes from and how this money is to be handled. Therefore, what we  have already explained  in the first part of the legal tip applies:

Once you have declared the cash and provided the required information, you have basically fulfilled your obligations. Further documents should at most support the information you have provided in the registration form. Again, it should be noted that incorrect or incomplete information provided during registration is an administrative offence that can be punished with a fine.

However, incorrect or incomplete information in the registration alone does not mean that criminal proceedings may be initiated against you for money laundering.

However, if you submit documents at the request of customs that supplement your original information, but at the same time offer indications of a money laundering offence, at least from the point of view of customs, there is a risk that your original information will be considered incomplete, which would constitute an administrative offence. At the same time, customs must hand over the proceedings to the public prosecutor's office on suspicion of money laundering. In this case, there is even a risk of permanent loss of all the money.

Criminal proceedings

If, based on its own investigations or the documents you have submitted, customs assume that a money laundering offence is in the room, it must hand over the proceedings to the public prosecutor's office.

The public prosecutor's office is now investigating whether you can be personally proven to have committed a crime. If this is not the case, the public prosecutor's office will check whether the money can be confiscated permanently by way of so-called selbständige Einziehung. For this purpose, it is sufficient that, in the opinion of a court, the money comes from some unlawful crime. Who, when and in what way this crime was committed does not need to be specified in more detail.