Since 6 May 2026 the Bundestag has had before it a bill that reverses the direction of proof when confiscating assets of unclear origin. The bill is short — a single sentence of statutory text carries the entire change. This article sets out what it actually says, which narrow class of proceedings it covers, where its reasoning rests on an assumption that breaks down in practice, and what follows for documenting your own assets.
The one sentence at issue
On 27 March 2026 the Bundesrat adopted the “Bill introducing a reversal of the burden of proof in independent extended confiscation under section 76a(4) of the Criminal Code”. On 6 May 2026 it was introduced into the Bundestag as printed paper 21/5777. The starting point was a motion by the State of Berlin (Bundesrat paper 131/26).
Substantively, section 76a(4) StGB is left untouched. What changes is the accompanying procedural provision, section 437 StPO:
An object shall be presumed to derive from an unlawful act where its value stands in a gross disproportion to the lawful income of the person concerned.
The criterion itself is not new. Since the 2017 reform of criminal asset recovery, section 437 StPO has provided that a court may base its conviction of criminal origin “in particular on a gross disproportion between the value of the object and the lawful income of the person concerned”. What is new is its function: an indicator among several that a court may weigh becomes a statutory presumption by which it is bound.
The bill therefore lifts the disproportion criterion out of the existing paragraph 1. What remains there — free evaluation of all circumstances, the investigation results, the circumstances of discovery, personal and economic conditions — continues to apply with the burden of proof unchanged on the state. The new paragraph 2 is the exception to that.
Why the current version has not worked
What is striking about the memorandum is its candour about the failure of its own predecessor provision. The 2017 reform legislature believed section 437 StPO would give courts a “clear guideline” operating much like a civil-procedure duty to give a substantiated account. The courts did not follow.
In settled case law the Federal Court of Justice requires unqualified judicial conviction of criminal origin; section 437 StPO carries no meaning that modifies the standard of conviction (BGH, judgment of 18 September 2019 – 1 StR 320/18; most recently BGH, judgment of 17 July 2025 – 5 StR 465/24). The memorandum concedes this without hedging:
In the result, the current legal position therefore offers no evidentiary relief for recovering incriminated assets of “unclear origin”. […] If, after the taking of evidence, doubts as to criminal origin cannot be dispelled, confiscation fails.
The state, it argues, is in a state of “structural evidentiary hardship”. And because experienced offenders are able to give coherent, detailed accounts of origin — backed, if need be, by manipulated documents — a mere duty to give a substantiated account would not suffice either. The solution “can consistently be sought only at the level of proof”.
The point on which everything turns
A presumption stands or falls on how it can be rebutted. Here the bill is more precise than the public discussion suggests — and stricter.
The difference from the present position fits in a single line:
| Question | Today (s. 437 StPO) | Bill (s. 437(2) StPO) | |
|---|---|---|---|
| Who must prove origin? only where a gross disproportion exists; otherwise paragraph 1 governs | The state — criminal origin | The person concerned — lawful origin | |
| Which standard of proof applies? the standard stays the same — only the direction flips | Unqualified conviction, s. 261 StPO | Unqualified conviction, s. 261 StPO | |
| Who is harmed by residual doubt? | The state — no confiscation is ordered | The person concerned — confiscation is ordered | |
| Role of the disproportion | One indicator among several | Basis of a presumption, no discretion | |
| Duty of investigation, s. 244(2) StPO expressly clarified in the memorandum | Applies | Continues to apply unchanged |
The basis of the presumption — the gross disproportion itself — must still be established to the court’s full conviction. What a “gross disproportion” is, however, the bill does not say: a definition is “deliberately dispensed with in view of the complexity of real-life circumstances”.
Who this applies to — the limitation usually left out
Here is the most important qualification, and it belongs at the front of any honest account: the provision does not cover assets at large.
What the limitation does not do: it nowhere requires a conviction. Section 76a(4) sentence 1 StGB is made precisely for cases in which the affected person cannot be prosecuted or convicted for the underlying offence. Nor need the affected person be the accused. It is enough that their object was seized in an investigation into a suspected listed offence.
The assumption that breaks down in practice
The bill’s constitutional justification rests on one easily overlooked sentence:
Where the object in question is in fact of lawful origin, it will as a rule be effortlessly possible for the person concerned to document that fact.
That assumption carries a great deal of weight — and it is weakest exactly where assets accumulate over long periods, in cash, or within a family. Anyone who regards that as a fringe problem can check it against current banking practice: under BaFin’s interpretation and application guidance on the Money Laundering Act, banks require proof of origin for cash deposits from EUR 10,000 (from EUR 2,500 for occasional customers). Acceptable evidence includes account statements showing cash withdrawals at other institutions, savings-book entries, or sales receipts.
That works for a transaction. It works poorly for a holding. An account statement shows that cash was withdrawn on a given day — not that the notes produced today are those notes and were not spent in the meantime. The longer the period, the smaller the individual amounts, and the more events took place outside the banking system (inheritance, gifts, private sales, family matters abroad), the less a seamless chain can be reconstructed to a standard that carries unqualified judicial conviction. Retention periods are finite in any case; bank records effectively are, after ten years.
Under current law, that gap is the state’s problem. Under the bill, it becomes the affected person’s problem. This is not a side effect but the stated purpose of the provision — the memorandum says expressly that what matters are doubts fed by “statements that are practically difficult for prosecuting authorities and courts to verify”.
There is also the transitional rule in Article 2. The new section 14(2) EGStPO extends the new law to proceedings already pending, provided no order opening the proceedings under section 435(3) sentence 1 in conjunction with section 203 StPO has yet been issued. Anyone in a pending proceeding today may therefore finish under new evidentiary law having started under the old.
What the critics say — and what the government does
In its comment no. 37/2026 the German Federal Bar Association (BRAK) considers the proposed reversal incompatible with constitutional requirements. It advances three objections: the rule that doubt benefits the accused, the privilege against self-incrimination (nemo tenetur), and the property guarantee in Article 14 of the Basic Law. It adds criticism of the indeterminate concept of “gross disproportion” and points out that the case law has relaxed the requirements in any event.
The bill answers with a doctrinal move worth knowing, because it carries the whole dispute: confiscation is said to be neither a penalty nor a penalty-like measure, but a measure sui generis with a “restitution-like character” — comparable to unjust enrichment under sections 812 et seq. BGB. Consequence: the principle of guilt and the presumption of innocence do not apply (citing BVerfGE 110, 1 and BVerfGE 156, 354). Article 6(2) ECHR, too, is said not to apply to confiscation proceedings “in rem” under the case law of the European Court of Human Rights.
Whether that holds is open — and the bill says so itself: the Federal Constitutional Court has not yet ruled on the constitutionally permissible reach of statutory presumptions in independent confiscation proceedings.
The federal government took a notable position in its formal comment (Annex 2 to the bill): it supports the objective, but considers the specific design to require careful examination, and announces that it will take the matter up “in the context of its own legislative project on the reform of criminal asset recovery”. A bill is to be tabled “this year”.
That is the finding that matters for calibration: the present text may well not become law. The direction is set regardless — expressly in the coalition agreement for the 21st legislative period as a “complete reversal of the burden of proof for confiscating assets of unclear origin” (pp. 83, 90), and in EU law through Article 16 of Directive (EU) 2024/1260, whose transposition deadline expires on 23 November 2026 and which expressly names a substantial disproportion to lawful income as a criterion.
- 23 Sep 2016
Bundesrat calls for evidentiary relief
Already during the asset-recovery reform, the Bundesrat demands that evidentiary relief for assets of unclear origin be examined (Bundesrat paper 418/16, resolution).
- 1 Jul 2017
Sections 76a(4) StGB and 437 StPO enter into force
The reform creates independent extended confiscation. "Gross disproportion" enters the statute as an indicator — courts do not treat it as evidentiary relief.
- 2025
Coalition agreement, 21st legislative period
A "complete reversal of the burden of proof" for confiscating assets of unclear origin is agreed (pp. 83, 90). The conference of state interior ministers welcomes the plan in June 2025.
- 30 Jan 2026
Bundesrat resolution
On a motion by North Rhine-Westphalia and Saxony, the Bundesrat asks the federal government to examine whether a reversal can be legislated (paper 741/25, resolution).
- 4 Mar 2026
Berlin tables concrete wording
The State of Berlin introduces the legislative motion into the Bundesrat as paper 131/26.
- 27 Mar 2026
Bundesrat adopts the bill
At its 1063rd session the Bundesrat resolves to introduce the bill in the Bundestag.
- 6 May 2026
Introduction into the Bundestag
The bill reaches the Bundestag as printed paper 21/5777. The Federal Ministry of Justice is the lead ministry. The government announces its own reform project for 2026.
- 23 Nov 2026
Transposition deadline, Directive (EU) 2024/1260
By then the EU asset-recovery directive must be transposed into national law; Article 16 names a substantial disproportion to lawful income as a criterion.
Our assessment
To keep the line clear: everything above is sourced and cited. What follows is our assessment as a service provider — not a forecast and not legal advice.
The popular shorthand that “all assets will be illegal by default” does not describe this bill. It is refutable in a single sentence, and anyone who argues it gives away the more serious point.
The more serious point is the asymmetry of documentation. The bill shifts the consequence of not knowing — and it shifts it not onto the person who can invent a story, but onto anyone whose true story can no longer be traced through documents after some years. The memorandum assumes documentation is “as a rule effortlessly possible”. For bank balances, salaries and notarised purchase agreements, that holds. For cash holdings, family gifts, old sales and matters abroad, it does not — and those cases are not rare among ordinary people, they are normal.
And the threshold for application is a suspicion in an underlying investigation, not a conviction. Anyone who feels safely remote from that should bear in mind that exposure is not decided by their own conduct alone, but also by whose investigation their object happens to be seized in.
What follows in practice
The effective response is unglamorous and has nothing to do with hiding. It consists in making the origin of your assets evidenced while the evidence still exists — regardless of whether this particular bill becomes law. The same requirement is already put to you by every bank at account opening, every notary on a property purchase, and every tax office running a net-worth comparison.
- Build an origin dossier: purchase agreements, salary records, tax assessments, sales receipts — dated and in one place
- Document gifts within the family and, where required, report them under section 30 ErbStG
- Keep inheritances evidenced via certificate of inheritance, estate inventory and tax assessment
- Wind down cash holdings, or document how they arose, before the records are discarded
- Archive account statements yourself, beyond the customary ten-year bank retention
- Declare foreign matters in full — Georgia has reported under the CRS since 2024
- Rely on secrecy or cash as a protection strategy
- Wait until a proceeding is running — by then the proof is your job, not the state's
The same logic runs through this whole subject area: access to assets is not made harder by hiding them, but by records and by spreading them across several legal systems with full declaration. How far access already reaches today is covered in Account Seizure: How Far Enforcement Really Reaches; why your bank may tell you nothing about it, in Account Freeze: Your Bank Is Not Allowed to Tell You Why. The coming cash limit and its documentation consequences are covered in EUR 10,000 from July 2027: What Actually Applies, and the reporting channels under the CRS in CRS and Georgia — what your home tax authority sees. The debate about access to private wealth from the other side — through levies rather than confiscation — is in German Wealth Levy: What Is Planned for EUR 2.8 Trillion, and the structural preparation in the 10 Questions Every Serious Asset Protection Provider Must Answer.
Frequently asked questions
Would the planned reversal apply to any and all assets?
No. The presumption in the draft section 437(2) StPO applies only in independent extended confiscation proceedings under section 76a(4) StGB. It still requires that the object was seized in an underlying investigation into one of the offences exhaustively listed in section 76a(4) sentence 3 StGB — criminal and terrorist organisations, terrorist financing, human trafficking, money laundering, and narcotics, weapons and people-smuggling offences. Anyone who never comes into contact with such a proceeding is not covered. That limitation is central, and it is routinely lost in public debate.
Do I have to be convicted for assets to be confiscated?
No, and that is the point of the instrument. Section 76a(4) sentence 1 StGB is designed precisely for cases in which the affected person cannot be prosecuted or convicted for the underlying offence. A suspicion of a listed offence, as the trigger for the seizure, is enough. The affected person and the accused need not be the same person.
Is it enough to make lawful origin plausible?
Under the bill, no. The explanatory memorandum states expressly that a court may find lawful origin only if it reaches unqualified conviction under the standard of section 261 StPO — the same high standard the state must meet today for criminal origin. Remaining doubts then count against the affected person. That is exactly the difference between a duty to give a substantiated account and a genuine reversal of the burden of proof.
What counts as a "gross disproportion"?
The bill does not say. The memorandum deliberately declines to define the term "in view of the complexity of real-life circumstances" and leaves it to the courts. The wording has been in section 437 StPO since 2017, but only as one indicator among several. Promoting it to the basis of a legal presumption without a definition is one of the German Federal Bar Association's main criticisms.
Is this already law?
No. It is a bill of the Bundesrat, adopted on 27 March 2026 and introduced into the Bundestag on 6 May 2026 as printed paper 21/5777. In its formal comment the federal government supports the objective but considers the constitutional design to require careful examination, and intends to take it up in its own reform of criminal asset recovery. Whether a presumption rule becomes law, and in what wording, is therefore open — the direction of travel is not.
Why is this coming up now?
Because three strands converge: the coalition agreement for the 21st legislative period, which announces a "complete reversal of the burden of proof" for confiscating assets of unclear origin; Directive (EU) 2024/1260, to be transposed by 23 November 2026, whose Article 16 expressly names a "substantial disproportion" to lawful income as a criterion; and the federal government's announcement that it will table its own bill during 2026.
Does an account abroad help against a confiscation order?
Not as a shield, and anyone selling it that way is selling you a risk. A foreign account changes nothing about the lawfulness of a German order, and Georgia has participated in automatic exchange of information under the CRS since 2024 — accounts are reported. What actually works is unglamorous: a documented, dated, verifiable chain of origin for your assets. Diversifying across jurisdictions and currencies remains sensible, but it is no substitute for records.
This article is general information and does not constitute legal or tax advice. Quotations and page references are taken from the Bundesrat bill, Bundestag printed paper 21/5777 of 6 May 2026 (predecessor: Bundesrat paper 131/26); sections 76a StGB and 437 StPO as currently in force, comment no. 37/2026 of the German Federal Bar Association, Directive (EU) 2024/1260 of 24 April 2024 and BaFin’s interpretation and application guidance on the Money Laundering Act were used in addition. Translations of statutory text are working translations for orientation; the German wording governs. The section “Our assessment” is expressly marked as opinion. The bill was not in force at the time of writing. Status: August 2026, subject to changes in the law.