Confiscation of the instrument of crime from a non-culpable actor: correction from § 74(1) to § 74b(1) No. 1 StGB without invalidating the order

The Federal Court of Justice (BGH) granted the defendant's petition for reinstatement into the prior status and, on the merits, dismissed the appeal as unfounded, thereby upholding the conviction from the Regional Court of Braunschweig and ordering the appellant to bear the costs of the legal remedy. The dispute concerned a criminal appeal against a judgment that included an order for the confiscation of the instrument of crime, where the General Public Prosecutor’s application relied on a legal basis deemed incorrect by the Senate. The decisive legal basis was the correction of the statutory citation for the confiscation of an instrument of crime from a person acting without fault from § 74(1) German Criminal Code (StGB) to § 74b(1) No. 1 StGB; however, this error did not jeopardize the validity of the confiscation order because the factual findings established by the lower court sufficiently met the requirements of the correct provision.